JURY


Updated 1/27/10

TOPICAL OUTLINE
SELECTION PROCESS (For federal habeas cases, go here; IAC cases, here.)
COSTS
DELIBERATIONS
DISMISSAL OF JUROR (POST-VOIR DIRE)
INSTRUCTIONS (See also federal habeas cases here)
QUESTIONING BY JURORS
VENUE CHANGE
VERDICTS
  • Guilt on Both Greater and Lesser Offenses
  • Impeachment, § 906.06
  • Inconsistency
  • Polling
  • Special Verdicts
  • Unanimity
WAIVER OF JURY


  


JURY SELECTION PROCESS

Anonymous Jury

Anonymous Jury
State v. Sherrie S. Tucker, 2003 WI 12, on certification
For Tucker: Paul LaZotte, SPD, Madison Appellate
Issue/Holding:
¶4. We hold that in accordance with the standard articulated in Britt, if a circuit court restricts any juror information, the court must make an individualized determination that the jury needs protection and take reasonable precautions to minimize any prejudicial effect to the defendant. Therefore, we conclude that the circuit court in this case erroneously exercised its discretion in withholding the jurors' names from the record because it failed to make an individualized determination that the jury needed protection and failed to take reasonable precautions to minimize any prejudicial effect to Tucker. Nevertheless, we further conclude that the error was harmless based on the overwhelming evidence of Tucker's guilt....

¶27. Based on all the above, we hold that when a circuit court restricts any juror information, the court must: (1) make an individualized determination that the jury needs protection; and (2) take reasonable precautions to minimize any prejudicial effect to the defendant, which includes making a precautionary statement to the jury so that the restriction does not negatively reflect on the defendant's guilt or character. The circuit court in this case failed to satisfy this two-prong test; however, the error was harmless in light of the overwhelming evidence of Tucker's guilt.

This was not, strictly speaking an anonymous jury, in that only names and not information was withheld. But due process concerns are raised nonetheless, and anonymous-jury caselaw “is beneficial to our analysis.” ¶11. The court recites the development of this recent trend toward juror anonymity, noting again that serious concerns with respect to presumption of innocence and jury impartiality are implicated by the practice. ¶¶18-19. Therefore, the two-part Britt test is approved: “if a court withholds any juror information, it must both: (1) find that a jury needs protection; and (2) take reasonable precautions to avoid prejudicing the defendant.” ¶19. That test wasn’t satisfied: the trial court indicated that it was using the procedure as a matter of its practice, something inconsistent with the requirement of individualized determination. ¶¶20-21. (Appropriate factors are summarized, ¶22.) And, the trial court failed to take ameliorative action:

¶23 … The circuit court did instruct the jury on Tucker's presumption of innocence and on the State's burden of proving guilt beyond a reasonable doubt. However, we conclude that this instruction, by itself, was insufficient. When jurors' names are withheld, as in this case, the circuit court, at a minimum, must make a precautionary statement to the jury that the use of numbers instead of names should in no way be interpreted as a reflection of the defendant's guilt or innocence. We recognize that in Britt, the circuit court apparently did not give a precautionary instruction to the jury; however, due to the potential for prejudice to the defendant, we conclude that such an instruction is necessary.

But, because evidence of guilt was overwhelming, the error was harmless. ¶26.
No constitutional right to "public" (i.e., non-anonymous) jury: U.S. v. Lawson, 6th Cir 04-4480, 10/9/08.
Anonymous Jury
State v. Edward A. Murillo, 2001 WI App 11, 240 Wis. 2d 666, 623 N.W.2d 187, habeas relief granted on other grds., Edward A. Murillo v. Frank, No. 04-2202, 4/1/05
For Murillo: Craig Albee
Issue: Whether the trial court erroneously exercised discretion by referring to jurors by number rather than name.
Holding: Because of sufficient evidence of gang involvement in this case, juror anonymity was a reasonable precaution. ¶¶27-32

Batson Issues

See generally Snyder v. Louisiana, USSC Co. 06-10119, 3/19/08 (Court rejects two separately proffered reasons for striking black juror: that the juror "looked very nervous"; and that the juror had student-teaching obligations: “The implausibility of this explanation is reinforced by the prosecutor’s acceptance of white jurors who disclosed conflicting obligations that appear to have been at least as serious as Mr. Brooks’.” Comparisons of similar variables of retained and struck jurors, then, can be highly relevant to Batson analysis.)
Selection -- “Batson” Issue
State v. George Melvin Taylor, 2004 WI App 81, PFR filed 4/13/04
For Taylor: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding:
¶18. Accordingly, we must now turn to the Batson challenge itself. Our supreme court has adopted the Batson principles and analysis. State v. Lamon, 2003 WI 78, ¶22, 262 Wis. 2d 747, 664 N.W.2d 607 (citing State v. Davidson, 166 Wis. 2d 35, 39-40, 479 N.W.2d 181 (Ct. App. 1991)). Lamon reiterates the three-part, burden shifting analysis set forth in Batson for the evaluation of such a challenge:
[I]n order to establish a prima facie case of discriminatory intent, a defendant must show that: (1) he or she is a member of a cognizable group and that the prosecutor has exercised peremptory strikes to remove members of the defendant's race from the venire, and (2) the facts and relevant circumstances raise an inference that the prosecutor used peremptory strikes to exclude venirepersons on account of their race.
Lamon, 262 Wis. 2d 747, ¶28 (footnote omitted). Then, if the trial court finds that the defendant has indeed established a prima facie case, "the burden shifts to the State to come forward with a neutral explanation for challenging [the dismissed venireperson]" and "[t]he prosecutor's explanation must be clear, reasonably specific, and related to the case at hand." Id., ¶29 (citation omitted). This step concerns the facial validity of the prosecutor's explanation. That is, unless the prosecutor intended to cause a disparate impact with his or her peremptory strike, the impact itself does not compromise the neutrality of the strike. Id., ¶30. Finally, after the prosecutor offers a neutral explanation for the strike, the trial court "has the duty to weigh the credibility of the testimony and determine whether purposeful discrimination has been established." Id., ¶32. The defendant has the "ultimate burden" of persuading the trial court that there was purposeful discrimination. Id. Thus, a showing of disparate impact is not enough-proof of discriminatory intent or purpose is essential for a successful Batson challenge.
However, as the decision goes on to note, ¶23 n. 5:
once a neutral explanation has been offered, “and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant has made a prima facie showing becomes moot.” Hernandez v. New York, 500 U.S. 352, 359 (1991) (plurality opinion); State v. King, 215 Wis. 2d 295, 303, 572 N.W.2d 530 (Ct. App. 1997). As such, an explicit trial court finding that a prima facie case had been established is not necessary for this court to evaluate the rest of the analysis. King, 215 Wis. 2d at 303.
In this instance, although the court concludes that the burden never shifted to the prosecutor to provide a gender-neutral explanation (this case involves an allegation of gender-, not race-, discrimination, but that is a mere detail) it reaches the merits anyway. The prosecutor’s explanations – that she struck four male jurors because among other things each had served on a prior jury – “are reasonable.” ¶23.

For an interesting discussion, see Paulino v. Castro, 9th Cir. No. 02-55924, 6/14/04 (among its more important points: prima facie showing of discriminatory intent may be shown by statistical disparity alone -- in this instance, that 5 out of 6 black jurors were struckand that, once the burden has been satisfied, "(w)hat matters is the real reason they were stricken," not the trial court's speculative reason no matter how good it might be). See also U.S. v. Stephens, 7th Cir No. 03-2964, 8/29/05 (re: statistical disparity).

Selection – “Batson” -- Judge's Failure to Make Detailed Findings
State v. Nancy R. Lamon, 2003 WI 78, affirming unpublished decision of court of appeals, affirmed on habeas review, Lamon v. Boatwright, 7th Cir No. 05-4018, 11/8/06
For Lamon: Timothy A. Provis
Issue/Holding:A trial judge is not required to make detailed findings in ruling on a Batson issue. ¶76.
Selection – “Batson” -- Race-Neutral Reasons
State v. Nancy R. Lamon, 2003 WI 78, affirming unpublished decision of court of appeals, affirmed on habeas review, Lamon v. Boatwright, 7th Cir No. 05-4018, 11/8/06
For Lamon: Timothy A. Provis
Issue/Holding: That a prospective juror’s last name “is a well-known criminal name” in the locality, and the juror’s address is in a high-crime area and has itself received police contacts are race-neutral reasons for striking the juror. ¶¶80-86. That the prosecutor did not direct individualized questions to this juror is not conclusive of discriminatory intent. ¶¶88-89. And that the juror’s employment record was admittedly spotty (“varies”) is race-neutral. ¶90.
Batson involves a three-step process: 1) determination of prima facie case of discriminatory intent; if so, determination of whether the prosecutor had a race-neutral justification for striking the juror; 3) if so, determination of whether purposeful discrimination has been established. ¶¶27-32. The third step “is the relevant inquiry in this case.” ¶70. See also dissent, ¶ 101. The long and short of it is that the 3-vote dissent parts company on the way the majority handles this inquiry:
¶102. The majority opinion, however, never decides whether the circuit court properly exercised its discretion under step three of the Batson analysis. The majority errs by conflating the second and third steps of the Batson analysis and by concluding that the State's satisfaction of step two is sufficient, in and of itself, to defeat a charge of purposeful discrimination….
See also ¶¶133-34.
Selection -- "Batson"
State v. Bernell Ross, 2003 WI App 27, PFR filed 2/21/03
For Ross: Andrew Mishlove
Issue/Holding:
¶15. In a challenge to a Batson ruling, we review the trial court's determination as to whether the State had a discriminatory intent as a finding of historical fact, which we shall not disturb unless clearly erroneous. State v. Gregory, 2001 WI App 107, 5, 244 Wis. 2d 65, 630 N.W.2d 711. The methodology we employ is a three-step process that may involve shifting burdens, depending upon the evidence presented. In the first step, the accused must make a prima facie showing that the State acted with discriminatory intent by establishing that it exercised peremptory strikes on the basis of race, gender, or any other prohibited category. State v. Jagodinsky, 209 Wis. 2d 577, 580, 563 N.W.2d 188 (Ct. App. 1997). The trial court may consider all relevant factors in determining whether the accused made a prima facie case. State v. Walker, 154 Wis. 2d 158, 173-74, 453 N.W.2d 127 (1990).
The victims were African-American; the state struck three African-Americans, one Hispanic and three whites; the trial court's ruling that Ross had failed to make a prima facie Batson showing is upheld as not clearly erroneous. ¶¶19-21.

For another summary of the 3-step process under Batson, see Akeem Aki-Khuam v. Davis, 7th Cir. No. 02-1945, 5/8/03. UPDATE: U.S. v. Stephens, 7th Cir No. 03-2964, 8/29/05, taking into account Johnson v. California, 125 S. Ct. 2410 (2005).

Selection -- "Batson" Objection
State v. Calvin Gregory, 2001 WI App 107, PFR filed 5/10/01
For Gregory: Meredith Ross, LAIP, UW Law School
Issue1: Whether defendant was entitled to a Batson hearing on the prosecutor’s articulated reasons for striking the lone African-American juror.
Holding1: The prosecutor’s asserted reasons -- concerns about juror’s truthfulness; close proximity of juror’s residence to alleged scene of crime; juror’s own and family member’s involvement with criminal justice system -- were racially neutral. ¶12.
Issue2: Whether defendant was entitled to a postconviction hearing on the validity of the prosecution’s asserted reasons for striking the lone African-American juror, where those reasons were based on information outside the prosecutor’s personal knowledge.
Holding2:
¶14. Furthermore, we also conclude that a postconviction evidentiary hearing was properly denied because a circuit court's decision on a Batson challenge must be made before the jury is sworn. Furthermore, none of the proffers provided proof that was relevant to the prosecutor's intent when he struck Bell. For example, none of the documents showed the prosecutor had not been told what he represented to the court in the Batson hearing or that he knew any of the information he said he relied on was inaccurate. Instead, most of the materials focused on whether the information he was given was accurate. However, when attempting to prove the reasons given by the prosecutor were pretextual, the focus must be on what the prosecutor knew about the potential juror when he made the strike. Williams v. Chrans, 957 F.2d 487, 491 (7th Cir. 1992). Therefore, if a defendant is attempting to prove the prosecutor's reasons for the strike were pretextual, a defendant must show either that the prosecutor intentionally misrepresented the facts he said he relied on or that he had been told those facts but he knew they were erroneous. Stated another way, even if we were to assume, arguendo, that the prosecutor relied on inaccurate information, it does not necessarily follow that the prosecutor had the intent necessary to sustain a finding of purposeful discrimination. Here, what Gregory sought to prove by his proffers at the postconviction hearing was not relevant to the prosecutor's intent when he struck Bell. See State v. Toliver, 187 Wis. 2d 346, 358, 523 N.W.2d 113, 117 (Ct. App. 1994). Additionally, if counsel for the defense required additional information in order to challenge the prosecutor's statements in the Batson hearing, he should have requested a brief adjournment at that time, fully explaining what he needed and why he needed it in order to complete the Batson hearing. No adjournment was requested here. Therefore, for all the reasons set forth above, we affirm the judgment of the circuit court.
Note: As the dissent points out, at least some of the information relied on by the prosecutor seems to be inaccurate, ¶29; and, because the question is whether the strike was purposely discriminatory, when the prosecutor claims to rely on the reports of others, it isn’t possible "to assess the credibility of that prosecutor without evaluating the information on which he or she is relying," ¶25.
Selection -- Batson Objection, Timeliness: Prior to Jury's Swearing
State v. Dennis Jones, 218 Wis. 2d 599, 581 N.W.2d 561 (Ct. App. 1998)
For Jones: Michael S. Holzman
Issue/Holding:
The State argues that Jones's Batson objection, made after the jury was sworn, came too late. Jones responds that his objection was timely. We conclude that the defendant must make a Batson objection prior to the time the jury is sworn. If the objection is not made until after that time, the issue is waived.

Bias of Juror


Generally

Bias / Disqualification - Exercise of Discretion
State v. Mark H. Tody, 2009 WI 31, reversing unpublished opinion
For Tody: Byron C. Lichstein, UW Law School
Issue/Holding:
¶32      … The correct principle of law that should have guided the circuit court judge is that a circuit court judge should err on the side of dismissing a challenged juror when the challenged juror's presence may create bias or an appearance of bias. [15] The reason for this principle of law is that a circuit court's striking a prospective juror who raises issues of bias saves judicial time and resources in the long run. [16]

¶33      This court has acknowledged that cases concerning juror bias present difficult legal questions for this court and the court of appeals.[17] The circuit court's best course of action is to obviate the need for appellate review of these questions by erring on the side of caution in the first instance by striking the juror.


 [16]  Lindell, 245 Wis. 2d 689, ¶49 (stating that by "err[ing] on the side of striking prospective jurors who appear to be biased," the circuit courts may "avoid the appearance of bias, and may save judicial time and resources in the long run" (quoting State v. Ferron, 219 Wis. 2d 481, 503, 579 N.W.2d 654 (1998) (internal quotation marks omitted))).

 [17]  Lindell, 245 Wis.  2d 689, ¶31.


Criminal Record of Juror

Bias / Disqualification - Juror's Prior Criminal Record
State v. Robert A. Mendoza, 227 Wis.2d 838, 596 N.W.2d 736 (1999), reversing State v. Mendoza 220 Wis.2d 803, 584 N.W.2d 174 (Ct. App. 1998).
For Mendoza: Michael K. Gould, SPD, Milwaukee Appellate.
Issue/Holding: Striking jurors (at state's request) merely because they have criminal records is "an error of law," ¶24. The court, however, goes on to review whether each such juror should have been struck for cause. One juror had recently pled guilty to misdemeanor possession of cocaine and was waiting to serve his 16-day sentence. This juror, the court holds, was objectively biased, because his "contact with the criminal justice system was recent and continuing." ¶34. The second juror had a 1966 conviction for armed robbery and two, more recent misdemeanors; he evinced "residual hostility" about these experiences, thus establishing objective bias. ¶¶35-36. The third juror, convicted of burglary and sentenced to 18 months in 1994, denied guilt, and was objectively biased: "A person who believes he was once set up and that others are set up for crimes may not be an impartial juror." ¶38. Only the fourth juror - convicted more than 30 years before, and not harboring any apparent negative feelings with the system, isn't deemed biased. ¶¶39-40. (However, the error is deemed harmless.)

Bias of Juror


Doubtful Fairness of Juror

Bias / Disqualification Doubtful Fairness: -- Unequivocal Expression
State v. Howard C. Carter, 2002 WI App 55
For Howard: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding: Although review of a trial court’s determination of subjective (non-)bias of a prospective juror is generally deferential, here review is independent “because this is one of those rare situations where the prospective juror's unambiguous response, rather than his demeanor, is the basis of his subjective bias.” ¶10. And, because the juror openly admitted his bias, which was never questioned by the parties, he was subjectively biased as a matter of law.
Bias / Disqualification -- Doubtful Fairness: Belief Police More Credible
State v. Scot A. Czarnecki, 2000 WI App 155, 237 Wis.2d 794, 615 N.W.2d 672
For Czarnecki: Patrick M. Donnelly, SPD, Madison Appellate
Issue: Whether the trial court should have granted the defense motion to remove a prospective juror who acknowledged believing that police officers would be more credible than other witnesses.
Holding: Juror bias is reviewed with deference to the trial court's resolution. Because police credibility was never at issue, the juror wasn't objectively biased. ¶22. As to subjective bias, the juror made conflicting statements and the finding of the trial court, which was in a better position to make an assessment of the juror's sincerity, wasn't clearly erroneous. ¶23.
Go To Brief
Bias / Disqualification -- Doubtful Fairness: Equivocal Statement
State v. Nathaniel A. Lindell, 2000 WI App 180, 238 Wis.2d 422, 617 N.W.2d 500, affirmed on other grounds, State v. Nathaniel A. Lindell, 2001 WI 108
For Lindell: Russell L. Hanson; Timothy J. Gaskell
Issue: Whether the prospective juror's allowing, "I think I could" make a fair determination, established subjective bias.
Holding: The trial court's ruling of no subjective bias isn't clearly erroneous. 2000 WI App 180 ¶12. (Note: Contrast, U.S. v. Gonzalez, 214 F.3d 1109 (9th Cir. 2000) (juror's mere assertion would "try" to be fair insufficient to dispel concerns of bias).)
Bias / Disqualification -- Doubtful Fairness, Generally: Defer to Trial Court -- Need for Precise Questioning
State v. Marquis O. Gilliam, 2000 WI App 152, 238 Wis.2d 1, 615 N.W.2d 660
For Gilliam: Robert B. Rondini
Issue: Whether the trial court's denial of a motion to remove a juror based on subjective bias was clearly erroneous.
Holding: The issue of a juror's subjective bias is reviewed deferentially to the trial court's resolution. Though this case is different from prior cases -- here, "whether the juror has expressed a prejudice or predilection in the first instance" -- "on this issue as well, the circuit court has a better ability than [the appellate] court to assess the juror's response." ¶12. In part because trial counsel's questions to the juror at issue are seen as ambiguous and confusing, the trial court's finding of no bias is sustained: "In order to establish bias, the questions to the jurors must be precise, and ambiguities must be clarified with follow-up questions. That did not happen with respect to Hagen." ¶14.
Bias / Disqualification -- Doubtful Fairness: Equivocal Statement -- Deference to Trial Court Finding
State v. James H. Oswald, 2000 WI App 3, 232 Wis.2d 103, 606 N.W.2d 238.
For Oswald: James L. Fullin, Jr., SPD, Madison Appellate.
Issue: Whether an equivocal declaration of impartiality by a prospective juror is enough to establish subjective bias, given a trial court's finding to the contrary.
Holding: The issue of a prospective juror's subjective bias is reviewed on appeal through "a very deferential lens"; an unequivocal declaration of impartiality is not necessary to sustain a finding of no bias. ¶¶6-7 (court implies that only "an intractable bias against" an assertion of a fundamental constitutional right would suffice).
Bias / Disqualification -- Doubtful Fairness: Equivocal Statement -- Deference to Trial Court Finding
State v. Jimmie R.R., 2000 WI App 5, 232 Wis.2d 138, 606 N.W.2d 196
For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate.
Issue: Whether the trial court erred in refusing to strike for cause a potential juror who was equivocal on his ability to be fair.
Holding: The trial court did not err in finding no subjective bias.
Analysis: When asked if he could listen to the evidence and apply the law, the juror said, "I think I could." Despite his apparent "hesitancy about his ability to serve as a juror in light of his wife's past experience as a sexual assault victim," the court of appeals defers to the trial court's finding of no subjective bias. ¶¶27-28. Of further note: "¶30. We make a final observation regarding this matter based on the steady stream of juror selection cases that come before us. Because lawyers may ask leading questions on voir dire and because they are also skilled in obtaining desired answers, the responses of a prospective juror to such questions are often contradictory, depending on which party is asking the questions. Thus, on appeal, both parties are usually able to point to voir dire answers that support their competing positions regarding the challenged juror. Given this situation, it is all the more appropriate for us to defer to the trial court's better position to assess the prospective juror's credibility and honesty."
Bias / Disqualification -- Doubtful Fairness: Predetermined Guilt
State v. Theodore Oswald, 2000 WI App. 2, 232 Wis.2d 62, 606 N.W.2d 207
For Oswald: Jerome F. Buting, Kathleen B. Stilling
Issue: Whether prospective jurors' expressions of predetermined guilt established either objective or subjective bias.
Holding: Applying a mixed standard of review, the court discerns no bias, in that the strength of these opinions changed during voir dire and, more importantly, because the defense conceded factual guilt.
NOTE: This case was reversed on habeas review, Theodore W. Oswald v. Bertrand, 7th Cir. No. 02-2092, 6/29/04; for discusison of that case, go here.
Bias / Disqualification -- Trial Court Obligation to Conduct Hearing
State v. Theodore Oswald, 2000 WI App. 2, 232 Wis.2d 62, 606 N.W.2d 207
For Oswald: Jerome F. Buting, Kathleen B. Stilling
Issue: Whether the trial court erred in refusing to hold a hearing on juror misconduct when presented with information that at least one prospective juror was discussing the defendant's guilt during voir dire.
Holding: Given that the juror indisputably thought the defendant guilty, no hearing was necessary.
Analysis: During voir dire, it became apparent that at least several jurors were discussing Oswald's guilt. The trial court denied a defense request to inquire into whether any of the jurors already qualified to serve had been tainted by these discussions. On postconviction motion, Oswald presented one prospective juror (not ultimately seated) who had heard three others, including one who was seated, express opinions that Oswald was guilty and the trial would be a waste of time. ¶¶39-40. This was insufficient, the court of appeals holds, to establish juror misconduct. The postconviction testimony was apparently insignificant because the seated juror had already admitted he was biased and, therefore, his "admissions during voir dire were consistent with the alleged waiting room conversations." (But this is a bit of a non-sequitur: he also told the court that he would set aside his opinion, ¶46, and the postconviction testimony shows that he was less than candid in this respect.)
NOTE: This case was reversed on habeas review, Theodore W. Oswald v. Bertrand, 7th Cir. No. 02-2092, 6/29/04.
Bias / Disqualification -- Doubtful Fairness: Equivocal Expression
State v. James E. Erickson, 227 Wis.2d 758, 596 N.W.2d 749 (1999), on certification
For Erickson: Glenn L. Cushing, SPD, Madison Appellate
Issue/Holding: Though a juror gave a seemingly hedged answer ("I think so") to whether she'd be fair and impartial, the trial court's refusal to strike for cause is upheld given appellate deference to trial-level determination of no subjective bias. ¶¶37-44.
Go To SCt Brief
Go To COA Brief
Bias / Disqualification -- Doubtful Fairness: Equivocal Expression
State v. Vance Ferron, 219 Wis.2d 481, 579 N.W.2d 654 (1998), affirming, as modified, 214 Wis. 2d 268, 570 N.W.2d 883 (Ct. App. 1997)
For Ferron: Jane Krueger Smith
Issue: Whether a prospective juror's equivocations during voir dire required that he be struck for cause.
Holding: The trial court erred in refusing to strike for cause a potential juror who acknowledged only that he "probably" could set aside his opinion that a truly innocent defendant would testify.
Analysis: The trial court determination of juror dismissal for cause based on bias is reviewed deferentially. The court overrules its prior intimation, Nyberg v. State, 75 Wis. 2d 400, 249 N.W.2d 524 (1997), that a trial court must remove a juror upon reasonable suspicion of bias. Instead, bias must be "manifest" before the trial court's determination may be overruled. Thus, a trial court has "broad discretion in this area of law." The court employs a new test for juror bias: "(A) prospective juror's bias is 'manifest' whenever a review of the record: (1) does not support a finding that the prospective juror is a reasonable person who is sincerely willing to put aside an opinion or prior knowledge; or (2) does not support a finding that a reasonable person in the juror's position could set aside the opinion or prior knowledge." Application here: The trial court erred as matter of law in failing to strike the juror. Despite instructional efforts, the juror persisted in expressing a belief that a defendant who fails to testify is guilty. At most, he "probably" could set this opinion aside.. In sum, the juror failed "to indicate a sincere willingness to set aside his bias." The court cautions, however, that its conclusion might be different had the juror's bias not involved "such an essential constitutional right" as the privilege against compelled self-incrimination. And, a three-justice concurrence underscores this point: "We are not here dealing with whether a juror can accept the court's instructions on some mundane area of law. We are dealing with fundamental rights." Bablitch, J., conc. (But the holding also advises circuit courts "to err on the side of striking jurors who appear to be biased," even if the failure to strike would be upheld on appeal.) The court declines the state's invitation to overrule State v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997), a decision which requires a new trial, "(b)ecause Ferron was compelled to use one of his statutorily granted peremptory challenges to correct the circuit court's error of law."
Bias / Disqualification - Juror's Equivocations of Fairness
State v. Richard A.P., 223 Wis.2d 777, 589 N.W.2d 674 (Ct. App. 1998).
For Richard: Robert Henak.
(Dicta, fn. 1): Trial court refusal to strike for cause a juror who expressed doubts about her fairness since she'd been assaulted as a child criticized: "we note that the better practice is for the trial court to strike such a prospective juror," citing State v. Ferron, 219 Wis. 2d 481, 495-96, 579 N.W.2d 654 (1998). (But the court granting relief on other grounds, this remark is merely dicta.)

Employment

Bias / Disqualification -- Employment by DA's Office
State v. Dale L. Smith, 2006 WI 74, affirming unpublished decision
For Smith: Allison Ritter
Issue/Holding:
¶16      The sole question we must address on appeal is whether Smith was denied the right to an impartial jury by the circuit court's refusal to strikeCharlotte for cause. Smith argues that Charlotte should have been disqualified as objectively biased because she was employed by the prosecuting attorney. Essentially, Smith seeks a per se rule in Wisconsin that employees of the Milwaukee County District Attorney's Office cannot serve on juries in criminal cases prosecuted by their employer. Alternatively, the State argues that Charlotte did not demonstrate objective bias, and this court should not create a per se disqualification for such employees.

¶17      We believe in this case, the circuit court reasonably concluded thatCharlotte was not objectively biased under the totality of the circumstances. We further refuse to create a per se exclusion of potential jurors that are employed by the Milwaukee County District Attorney. In our view, the exclusion of jurors on the basis of objective bias is best left to the case-by-case discretion of the circuit court.

Because there is no per se rule, the issue is necessarily fact-specific:
¶24      In this case, the State of Wisconsin was represented by the Milwaukee County District Attorney's Office, located in the Courthouse Complex in downtownMilwaukee. Charlotte serves as an administrative assistant for the District Attorney's Office located in the Children's Court Center in Wauwatosa. She does not work on investigations. Furthermore, the record does not show any indication that Charlotte recognized Harris or vice versa. There is also no evidence that Charlotte had any contact with Harris, any prior familiarity with the case, or any work connected to the office in Milwaukee. 

¶25      Additionally, both attorneys pressed Charlotte to consider whether her position as an administrative assistant for the District Attorney would influence her decision, and each time she responded unequivocally that she could be fair and impartial. …

If there are not any other prosecutor’s offices in the state decentralized same as Milwaukee, this may represent the outer limit of what is tolerable, as the majority (the court splits 4-3) itself seems to acknowledge:
¶28      We fully recognize there may be situations where an employee of the Milwaukee County District Attorney will be objectively biased.  Indeed, "'we caution and encourage the circuit courts to strike prospective jurors for cause when the circuit courts "reasonably suspect" that juror bias exists.'" Lindell, 245 Wis. 2d 689, ¶49 (quoting Ferron, 219 Wis. 2d at 495-96). However, permitting an administrative assistant to serve on a jury who works at a different office in a different city than the prosecuting office and who otherwise knows nothing about the case, the defendant, and does not even recognize the prosecutor is not such an "extreme situation" that we must conclude the circuit court erred in refusing to strike Charlotte for cause.
That said, the majority also appears predisposed to reject any absolute, categorical rules of disqualification.
/td>

Exposure to Bailiff (as Potential Witness)

Bailiff as Potential Witness
State v. William Troy Ford, 2007 WI 138, affirming unpublished decision
For Ford: Ralph J. Sczygelski
Issue/Holding: Belated discovery of the bailiff’s involvement in the charged offense as a possible witness did not, under the circumstances, cause sufficient prejudice to require mistrial:
¶57 In the present case, Wolfgram was unaware of his involvement in the case until the morning of trial. The jury was unaware of his involvement until the direct examination of the store clerk, and Wolfgram was removed after the direct examination. Wolfgram therefore had very little contact with the jury after his involvement became known. Thus, as in Cullen, the jury could have been exposed to Wolfgram's potential influence for only a very limited period of time.

¶58 Further, this case involves a jury learning that the bailiff talked to a prosecution witness and urged him to call the police shortly after the crime took place. The potential for prejudice in such a case is no greater than when it is a juror who knows the complaining witness, as was the case in King.

¶59 Finally, the circuit court took a number of measures to assure that Ford was not prejudiced. It replaced the bailiff to avoid the possibility that the jurors would inquire about his observations. Because Ford requested that Wolfgram be subpoenaed as a witness, the court excluded the bailiff from the courtroom and instructed him not to discuss the case with witnesses.

¶60 More important, the circuit court inquired as to whether the jurors could decide the case fairly and impartially. …


Exposure to Extraneous Information by Prospective Juror

Bias / Disqualification -- Exposure to Extrinsic Information
State v. Edron D. Broomfield, 223 Wis.2d 465, 589 N.W.2d 225 (1999), affirming unpublished decision.
For Broomfield: Charles B. Vetzner, SPD, Madison Appellate.
Issue: Whether Broomfield was denied fair trial because juror overheard, prior to trial, prejudicial extraneous information relating to Broomfield's past misconduct.
Holding: Exposure to extrinsic information implicates the rule against verdict-impeachment, R. 906.06(2). The party must first establish by competent testimony three things: extraneous (as opposed to merely deliberative) information; improper exposure to the jury; potential prejudice. All steps are satisfied here. The information came from a non-evidentiary source (people talking about the defendant's "other bad acts"), and was therefore extraneous. It was improperly brought to the jury's attention, even though only one juror was exposed to it. And, it was potentially prejudicial, since it involved inadmissible character evidence. Having satisfied the competent-evidence test preliminary to impeaching a verdict, two more obstacles stand between Broomfield and the finish line. First, the circuit court must find "clear, satisfactory, and convincing" evidence that the juror heard the statements. The record establishes this showing (the trial court's finding to the contrary deemed clearly erroneous). But after all that, Broomfield's argument falters on the shoals of harmless error, the court concluding no reasonable possibility that this information would have had prejudicial effect on the average juror. The result is, perhaps, limited: the evidence of guilt, the court stresses, was overwhelming and the tainted information wasn't brought up during deliberations. The court also stresses that the information was derived from an overheard conversation - which the court disparagingly compares to "reading information in the newspaper or hearing it on the news." ¶¶19-32.
Although not raised by Broomfield, the following principle should be kept in mind in case it comes up:
Any unauthorized communication between a juror and a witness or interested party is presumptively prejudicial, but the government may overcome the presumption by making a strong contrary showing. ...

The Mattox rule applies when an unauthorized communication with a juror crosses a low threshold to create the potential for prejudice. A communication is possibly prejudicial, not de minimis, if it raises a risk of influencing the verdict. Prejudice is presumed under these circumstances, and the defendant’s motion for a new trial must be granted unless the prosecution shows that there is no reasonable possibility that the communication will influence the verdict....

Caliendo v. Warden, 9th Cir. No. 01-56946, 4/5/04.

Exposure to Theory of Defense by Prospective Juror

Bias / Disqualification -- Prospective Juror Familiarity with Theory of Defense
State v. Judith L. Kiernan, 227 Wis.2d 736, 596 N.W.2d 760 (1999), affirming State v. Kiernan, 221 Wis.2d 126, 584 N.W.2d 203 (Ct. App. 1998)
For Kiernan: Chad A. Lanning, Dennis M. Melowski, Barry S. Cohen, S.C.
Issue: Whether prospective jurors who had been part of a jury that two days earlier returned a verdict of guilty in a case involving the same defense attorney, similar facts, and the same defense theory could objectively set aside their opinion or prior knowledge so as to fairly and impartially decide Kiernan's case.
Holding:
¶21 ... We must reverse the decision of the circuit court because we determine as a matter of law the court could conclude only that the veteran jurors were objectively biased.7

¶22 The overwhelming majority of jurisdictions, both state and federal, have concluded that jurors who serve on another jury involving similar facts and issues need not categorically be removed for cause solely on that basis. ...

¶23 Moreover, we have been quite hesitant to create classes of persons that are per se excluded from jury service. ...

¶24 Rather, a party seeking to have that veteran juror removed for cause will need to make an individualized showing that the particular juror is objectively biased ....

¶25 We arrive at this conclusion based on the veteran juror’s statement at voir dire, ... that the juror believed that the Intoxilyzer 5000’s readings would be correct unless it could be shown either that the machine was operated by an unqualified person or that the machine failed its self diagnostic check. Three other veteran jurors concurred in this judgment. ...

¶28 The crux of Kiernan’s defense was that the breathalyzer rendered an inaccurate reading for reasons other than operator error or machine malfunction. By their own statements at voir dire, the veteran jurors had reached a conclusion on that very issue before they heard one sentence of testimony. ...


7 The State contends that the lack of a voir dire transcript means that we must assume that the veteran jurors maintained that they could be impartial and the circuit court believed them. We agree and have done so. However, the State seems to imply that this ends the inquiry.

The State fails to appreciate, however, that our objective analysis presupposes that such assurances are present. The purpose of the objective analysis is to probe beyond what a juror asserts in order to examine whether reasonable jurors could actually act in the manner the jurors stated they would act.

The dissent (¶¶36-47) would have overruled State v. Ramos, 211 Wis. 2d 12, 546 N.W.2d 328 (1997)] on the issue of "automatic reversal" (use of peremptory on challenged juror doesn't resolve challenge to juror bias). It should be noted that the dissent ultimately prevailed on this point, in State v. Nathaniel A. Lindell, 2001 WI 108. But there was no dispute (albeit no discussion, either) on the separate "automatic reversal" rule that a biased juror necessarily taints the verdict, without regard to harmless error enalaysis. For an interesting variation on this theme, see, Quintero v. Bell, 256 F.3d 409 (6th Cir. 2001) (counsel's acquiescence in seating of 7 jurors who had convicted convicted co-conspirator of same offense in separate trial, amounted to ineffective assistance; erroneous presence of these jurors "merits a presumption of prejudice" because it "amounted to structural error, which we exempt from harmless error analysis"), affirmed on remand, 368 F.3d 892 (6th Cir. 2004) (relief on ineffective-assistance ground, where "counsel’s acquiescence in allowing seven jurors who had convicted petitioner’s co-conspirators to sit in judgment of his case surely amounted to an abandonment of 'meaningful adversarial testing' throughout the proceeding, making “the adversary process itself presumptively unreliable”), see also dissent from denial of certiorari.

Inaccurate / Misleading Answers on Voir Dire

Bias / Disqualification -- Inaccurate / Incomplete Response During Voir Dire
State v. Carlos Delgado, 223 Wis.2d 270, 588 N.W.2d 1 (1999), reversing State v. Delgado, 215 Wis.2d 16, 572 N.W.2d 479 (Ct. App. 1997)
For Delgado: Joseph E. Schubert
Issue/Holding: The supreme court reverses Delgado's child sexual assault convictions, because a juror's misleading responses during voir dire indicate her inferred bias against Delgado. During voir dire, the juror failed despite ample opportunity to disclose that she had herself been the victim of a sexual assault as a child. A two-part test applies to this sort of problem: 1) incorrect or incomplete answer to a material question; 2) probability of the juror's bias. The first part of the test is not disputed, leaving potential bias as the only viable issue. Bias may be actual or inferred; the trial court found no actual bias, and the supreme court determines that that finding is not clearly erroneous. But bias may also be inferred and, though the trial court found no inferred bias, that finding is held to be clearly erroneous. Three factors, among others, are relevant to this inquiry: whether the voir dire question was sufficiently precise; whether other jurors' responses would have reasonably put the juror on notice that an answer was required; whether the juror became aware of the misleading nature of his/her answer yet fail to notify the court. The court's analysis is fact-specific, and should be carefully reviewed (the fact-intensive nature of the case itself suggesting the limited nature of the holding). The court stresses that being a victim alone is not enough to establish bias in a sexual assault case. Nonetheless, the charges against Delgado and the juror's "experience of a sexual assault as a child are closely connected." Her experience "understandably might have had a deep and lasting impact on her." She disclosed the information only "in a moment of anger during jury deliberations." Since the "circuit court did not carefully examine these facts and circumstances," its no inferred-bias finding is clearly erroneous. The court of appeals is similarly criticized, for not assessing the circuit courts failure to consider inferred bias.
One court phrases the test for implied bias this way, Sanders v. Lamarque, 9th Cir. No. 02-56893, 2/3/04:
... "Unlike the inquiry for actual bias, in which we examine the juror’s answers on voir dire for evidence that she was in fact partial, the issue for implied bias is whether an average person in the position of the juror in controversy would be prejudiced.” United States v. Gonzalez, 214 F.3d 1109, 1112 (9th Cir. 2000) (citations and internal quotation marks omitted) (emphasis in Gonzalez). Prejudice will be presumed under circumstances in which “the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.” Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990) (citations and internal quotation marks omitted). For instance, federal courts have found implied bias in circumstances “where the juror is apprised of such prejudicial information about the defendant that the court deems it highly unlikely that he can exercise independent judgment even if the juror states he will,” and “[t]he existence of certain relationships between the juror and defendant . . . support such a presumption [of bias].” Id. at 528 (citations omitted). Implied bias will be found only in “exceptional” or “extraordinary” cases. Smith v. Phillips, 455 U.S. 209, 222 n.* (1982) (O’Connor, J., concurring).

When establishing juror bias, “a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. The motives for concealing information may vary, but only those reasons that affect a juror’s impartiality can truly be said to affect the fairness of a trial.” McDonough, 464 U.S. at 556.

Though there is no reason to doubt the continuing viability of Delgado as a matter of state law, a constitutional challenge to incomplete juror answers may raise different considerations and a different result dcespite similar facts. See, e.g., Johnson v. Luoma, 6th Cir No. 04-1518, 10/12/05 (juror's acknowledgement she had previously been crime victim but failure to reveal that she was presently a complainant in a pending DV case not misleading, where questions put to her "so indefinite" and calling "for such subjective responses"). That court also casts doubt on viability of implied-bias doctrine, at least as matter of habeas (therefore, constitutional) review. All of which underscores need for pinpoint, not to say assertive questioning and follow-up on voir dire, so as to isolate issue as matter of state law direct-appeal -- a point otherwise made by State v. Marquis O. Gilliam, 2000 WI App 152, ¶14. Indeed, Johnson cites by way of distinction, Dyer v. Calderon, 151 F.3d 970, 979-84 (9th Cir. 1998) (en banc), an implied-bias case in which the juror lied materially and repeatedly, thus fatally undermining the court's confidence in her ability to decide the case fairly -- a juror's lies with respect to a matter of implied bias, then, may be sufficiently egregious to amount to objective (or actual) bias.
Bias / Disqualification -- Inaccurate / Incomplete Response During Voir Dire
State v. Edron D. Broomfield, 223 Wis.2d 465, 589 N.W.2d 225 (1999), affirming unpublished decision
For Broomfield: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding: One prospective juror heard, before trial, other prospective jurors describe Broomfield as a "gangster" who beat up kids and was involved in "drive-bys." The juror was chosen for the petit jury; he didn't convey this information to the others, nor was it brought up during deliberations -- The juror's failure to reveal during voir dire what he'd heard did not establish juror bias:
¶14 The proper time to determine whether a juror is impartial is on voir dire examination. Messelt, 185 Wis. 2d at 267. The voir dire, with its peremptory strikes and strikes for cause, is the prime instrument of the common law designed to assure an impartial jury and a fair trial. State v. Shillcutt, 119 Wis. 2d 788, 812, 350 N.W.2d 686 (1984) (Heffernan, C.J., concurring). The effectiveness of voir dire, however, is dependent upon the responses provided by prospective jurors and there are no guarantees that a juror will respond honestly, accurately or completely. Messelt, 185 Wis. 2d at 268.

¶15 In State v. Wyss, 124 Wis. 2d 681, 370 N.W.2d 745 (1985), this court set forth a two-step test to follow when bias is alleged to have resulted from a juror’s failure to reveal information on voir dire. In Wyss, we held that in order to be awarded a new trial in such instances, a litigant must demonstrate:

(1) that the juror incorrectly or incompletely responded to a material question on voir dire; and if so, (2) that it is more probable than not that under the facts and circumstances surrounding the particular case, the juror was biased against the moving party.
Wyss, 124 Wis. 2d at 726.

...

¶17 The record reveals that neither the circuit judge nor the attorneys asked the jury panel if they knew the defendant or if they knew anything, other than what was explained during voir dire, about the defendant. Because juror McCann was never specifically asked, his responses could not have been incorrect or incomplete. We find that the defendant has failed to satisfy the first prong of the test in Wyss; accordingly, we will not address the second prong.

Nonetheless, the information McCann had overheard was extraneous and potentially prejudicial, and he was competent to testify under §. 906.06(2). ¶¶25-26. But, because this information "would not have had a prejudicial effect upon a hypothetical average juror, the conviction is affirmed. ¶¶29-32.
For additional authority to the effect that the purpose of voir dire is "to allow for intelligent exercise of peremptory challenges," see Butler v. City of Camden, 3rd Cir. No. 02-2903, 12/18/03 (further holding that, on facts of case, trial court committed reversible error by foreclosing voir dire inquiry into potential bias in favor of law enforcement).

Selection - Bias / Disqualification - Judge's Relative

Selection - Judge's Mother
State v. Mark H. Tody, 2009 WI 31, reversing unpublished opinion
For Tody: Byron C. Lichstein, UW Law School
Issue/Holding: The presiding judge’s mother shouldn’t be impaneled in a criminal case.
Imagine that! Now the fun part: why this is so. The court unanimously agrees the juror should have been struck, but splits 3-3 on the rationale (Gableman didn’t participate). When no majority is commanded, the concurrence on the “narrowest grounds” represents the holding, Lounge Management v. Town of Trenton, 219 Wis.2d 13, ¶13, 580 N.W.2d 156 (1998). That’s swell in principle, but now you get to figure out which opinion is narrower in Tody, lead or concurrence. Lead: “A presiding judge's mother serving as a juror is a special circumstance so fraught with the possibility of bias that we must find objective bias regardless of the particular juror's assurances of impartiality,” ¶5. Concurrence: “[T]he combination of having the judge preside over a case in which he may be called upon to rule on a matter involving his mother as a juror is a problem waiting to happen. … [T]he circuit court judge has broad inherent authority and thus the discretion and authority to administer justice. Under his inherent authority, the judge should have … stricken his mother from the jury,” ¶¶59-60. See? The lead opinion takes a narrow approach: the judge’s mother necessarily is objectively biased and therefore subject to exclusion; the concurrence agrees that the mother must be excluded but invokes a broader basis, inherent authority to administer justice. Both sides agree on the necessity of exclusion. Both sides agree on the categorical basis for exclusion—you’re not going to see some future judge allow his or her mother to sit on the jury. True, the concurrence makes a rhetorical nod or two in favor of exercising discretion in this area, but makes it abundantly clear that discretion must be exercised in favor of exclusion (“I would call upon judges to use their sound discretion and inherent authority to avoid such situations where the recipe for disaster is right before their eyes,” ¶61). In sum, both sides agree that there will be no future repetition of this situation, with the lead pinning the “objective bias” label on exclusion and the concurrence invoking the judge’s “broad inherent powers,” ¶62. Once more into the breach: which rationale is narrower? You can make a strong argument in favor of the lead opinion, which makes the telling point that the “concurrence does not explain why the circuit court judge not only was permitted but also was required, on pain of reversal by this court, to exercise his discretion in this manner,” ¶6.

One possible point of unanimous agreement, worth keeping mind: judges can strike jurors for reasons other than objective/subjective bias. Whether they must under some given circumstance (such as close relation) is something else. ;


Language Comprehension

Selection - Language Comprehension
State v. Michael W. Carlson, 2003 WI 40, reversing, 2001 WI App 296
For Carlson: Steven L. Miller
Issue/Holding:
¶2. We hold that an ability to understand the English language is necessary in order to satisfy the requirements Wis. Stat. § 756.02 and § 756.04 (1999-2000). If a potential juror indicates on the juror questionnaire that he or she is unable to understand English, his or her name shall be struck from the juror pool. If a juror who does not meet the statutory requirements of Wis. Stat. § 756.02 is impaneled, then the entire trial process may be nothing more than an "exercise in futility." State v. Coble, 100 Wis. 2d 179, 216, 301 N.W.2d 221 (1981) (Coffey, J., concurring).
The facts can’t be concisely recited. The juror said in a pretrial qualification form that he couldn’t understand English. That, as the concurrence shows in a three-paragraph model of brevity, is (or should be, anyway) enough to establish a statutory disqualification. ¶¶52-54. The holding isn’t quite so simple. There was a postconviction hearing at which additional evidence was adduced on the subject of the juror’s facility with English, but with certain evidence disallowed on the ground of improper verdict-impeachment. The majority specifically declines to reach the question of whether this sort of evidence would violate the verdict-impeachment rule. ¶¶26. The majority does, though, otherwise consider the postconviction-hearing facts, namely, quite a bit of embellishment as to the juror’s difficulties with English, ¶¶14-16, which makes the holding more fact-specific than necessary.

Is inability to understand basic legal concepts the same as inability to understand English for purposes of juror disqualification? See Franklin v. Anderson, 6th Cir No. 03-3636, 1/9/06 ("we, nonetheless, do find that she was not an impartial juror because she demonstrated that she could not comprehend the legal standard she was supposed to apply").


Personal Familiarity / Contact with Law Enforcement Personnel

Bias / Disqualification -- Juror's Close Contacts with Law Enforcement
State v. James H. Oswald, 2000 WI App 3, 232 Wis.2d 103, 606 N.W.2d 238
For Oswald: James L. Fullin, Jr., SPD, Madison Appellate.
Issue: Whether prospective juror's equivocations along with close contacts with law enforcement, where the trial involved the death of an officer, established objective bias.
Holding: "(E)xclusion of a juror for objective bias requires a direct, critical, personal connection between the individual juror and crucial evidence or a dispositive issue in the case to be tried or the juror's intractable negative attitude toward the justice system in general," ¶8, none of which are present, ¶¶20-23, under an intermediate standard of deferential review, ¶5. (Note: In a concurrence, Judge Nettesheim reminds trial courts that they should err on the side of caution; warns that the jurors here gave at least the appearance of bias; and admonishes the state and trial court for taking "an unnecessary risk of reversal. ¶¶52-54.)

Medical Condition of Prospective Juror

Bias / Disqualification -- Juror Medical Condition, Acknowledged Loss of Concentration -- Deference to Trial Court Finding
State v. Ludwig Guzman, 2001 WI App 54, 241 Wis. 2d 310, 624 N.W.2d 717
For Guzman: Robert E. Haney
Issue: Whether the trial court should have struck for cause one juror who acknowledged a medical condition that would prevent him from paying attention and another who acknowledged he wouldn’t be impartial because of lost income.
Holding: The trial court’s findings that each juror could be impartial weren’t clearly erroneous. ¶¶14-17.

Contact / Familiarity with Victim or Witness

Impartiality/Bias -- Extensive Contact with Victim
State v. Nathaniel A. Lindell, 2001 WI 108, 629 N.W.2d 223, affirming State v. Lindell, 2000 WI App 180, 238 Wis.2d 422, 617 N.W.2d 500
For Lindell: Timothy J. Gaskell
Issue: Whether a prospective juror’s long personal familiarity with the victim, including the latter’s long business relationship with the juror and her parents, established disqualifying “objective bias.”
Holding:
¶48. It is not always enough that a prospective juror assures counsel or the court that he or she will be impartial. Circuit courts are often in a better position to judge whether a prospective juror is biased, or potentially biased, than is the prospective juror. For example, the circuit court will almost always have a better appreciation for the evidence that is going to be presented in the trial than the prospective juror. As the defendant points out, the relationship of D.F. to the victim--as opposed to a witness--meant that D.F. would confront a great deal of evidence concerning Harmacek's death. This evidence was likely to include testimony from a forensic expert, photos of the crime scene, and autopsy photos of the victim. The circuit court was in a better position than D.F. to judge the likely effect of this evidence on her because of her relationship to the victim.

¶49. We take this opportunity to restate that ‘we caution and encourage the circuit courts to strike prospective jurors for cause when the circuit courts “reasonably suspect” that juror bias exists.’ Ferron, 219 Wis. 2d at 495-96. This is a decades-old standard, Kanzenbach v. S.C. Johnson & Son, Inc., 273 Wis. 621, 627, 79 N.W.2d 249 (1956), that encourages circuit courts 'to err on the side of striking prospective jurors who appear to be biased, even if the appellate court would not reverse their determinations of impartiality. Such action will avoid the appearance of bias, and may save judicial time and resources in the long run.' Ferron, 219 Wis. 2d at 503 (emphasis added). As Justice William A. Bablitch said in dissent in State v. Louis, 156 Wis. 2d at 486: ‘It is the appearance of partiality that gives great pause. Jurors must not only be fair and impartial; they must also not have a relationship to either side which leaves doubt about their impartiality.’

¶50. Prospective juror D.F. was objectively biased and should have been struck for cause. The facts show that a reasonable person in D.F.'s position could not have remained fair and impartial.

(Note: See ¶¶38-40 for summary of standard of review for objective bias. The court of appeals' holding that objective bias had not been shown is overturned by the result.)
Bias / Disqualification -- Familiarity with Witness
State v. George A. Faucher, 227 Wis.2d 700, 596 N.W.2d 770 (1999), affirming State v. Faucher, 220 Wis.2d 689, 584 N.W.2d 157 (Ct. App. 1998)
For Faucher: Suzanne Hagopian, SPD, Madison Appellate
Issue/Holding: A juror knew a critical state's witness as a neighbor, and "[knew] she wouldn't lie." When pressed, the juror said he could set aside his personal feelings. The judge refused to strike for cause. The supreme court takes the occasion to revamp the methodology for dealing with juror bias. Prior terminology - "actual," "implied," "inferred" bias - is out; new phrasing- "statutory," "subjective," "objective" bias - is in. Statutory bias refers to disqualifiers in § 805.08(1); impartiality is irrelevant. ¶26. Subjective bias, closely related to prior actual bias, is "revealed through the words and the demeanor of the prospective juror." ¶27. The trial court's determination of subjective bias is reviewed deferentially. ¶28. Objective bias turns "upon whether the reasonable person in the individual prospective juror's position could be impartial," taking into account facts and circumstances of voir dire and the case itself. ¶29. Objective bias presents a mixed question of law and fact, reviewed with at least some deference to the trial court. ¶¶31-32. Application to this case: The trial court's finding that the juror could set aside his subjective bias is sustained as not clearly erroneous. ¶55. But the trial court did not go on to make any analysis as to objective bias, and the supreme court holds that "only one conclusion" is possible: the juror was objectively biased (largely because juror strongly believed witness wouldn't lie; and her credibility was critical). ¶57.
Go To Brief
Bias / Disqualification -- State's Witness as Brother-in-Law of Prospective Juror: Statutory Disqualification
State v. Scot A. Czarnecki, 231 Wis.2d 1, 604 N.W.2d 891 (Ct. App. 1999)
For Czarnecki: Patrick M. Donnelly, SPD, Madison Appellate
Issue: Whether a prospective juror who is the brother-in-law of a state witness must be struck for cause as a "relative by blood or marriage to the third degree of a state witness."
Holding: Brother-in-law relationship constitutes automatically disqualifying statutory bias.
Analysis: A prospective juror was the brother-in-law of the investigating detective. He said, during voir dire, that he'd gauge the detective's credibility the same as any other witness, and the trial court denied Czarnecki's motion to strike the juror for cause. Czarnecki used a peremptory to remove the juror. Existing precedent holds that sibling relationship of juror to state's witness constitutes "implied bias" (in more current parlance: "statutory bias"). State v. Gesch, 167 Wis. 2d 660, 669, 482 N.W.2d 99 (1992). The court of appeals now extends that finding to in-law relationship, because it is a relationship "by blood or marriage to the third degree" (Wis. Stat. § 852.03(2)). The trial court therefore erred in failing to strike the juror for cause. As it turned out, each side was given one more peremptory than authorized, but the court of appeals refuses to find that this shared windfall cured the error: Czarnecki was still compelled to use a peremptory unnecessarily, and as a result he had fewer peremptories than the state, infringing his right to exercise all peremptories. See State v. Ramos, 211 Wis. 2d 12, 24, 546 N.W.2d 328 (1997) (stressing importance of equal number of peremptories to both sides). The state tries to overcome this problem by arguing that it had to use an unnecessary peremptory after the trial court erroneously refused to strike a biased juror. However, the court of appeals holds this argument waived, in that the state failed to raise the issue of juror bias with a contemporaneous objection.
Go To Brief

Victim-Status of Prospective Juror

Bias / Disqualification -- Victim's Spouse Sexual Assault Victim
State v. Jimmie R.R., 2000 WI App 5, 232 Wis.2d 138, 606 N.W.2d 196.
For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate.
Issue: Whether the trial court erred in finding no objective bias of a prospective juror whose spouse had been sexually assaulted as a child.
Holding: The trial court finding of no objective bias is upheld. Review is at least relatively deferential, in that the trial court's conclusion of no objective bias "will be reversed only if, as a matter of law, a reasonable judge could not have reached such a conclusion." ¶18. The court canvasses relevant case law, and discerns the following principle: "¶19. From our examination of the supreme court's recent decisions, we conclude that the exclusion of a prospective juror for objective bias requires either: (1) some direct or personal connection between the challenged juror and some important aspect of the particular case, or (2) a firmly held negative predisposition by the juror regarding the justice system that precludes the juror from fairly and impartially deciding the case." Because this juror neither had direct connection to anyone involved in the case nor harbored a firmly held predisposition regarding the justice system, he was not, as matter of law, objectively biased. ¶36.
Bias / Disqualification -- Prospective Juror as Prior Assault Victim
State v. James E. Erickson, 227 Wis.2d 758, 596 N.W.2d 749 (1999), on certification
For Erickson: Glenn L. Cushing, SPD, Madison Appellate.
Issue/Holding: Argument that juror was objectively biased, because she had previously been sexually assaulted rejected as being too close to form of categorical exclusion. ¶¶45-46.
Go To SCt Brief
Go To COA Brief

Waiver

Bias / Disqualification - Waiver: Failure to Use Peremptory to Remove Biased Juror not Waiver
State v. Mark H. Tody, 2009 WI 31, reversing unpublished opinion
For Tody: Byron C. Lichstein, UW Law School
Issue/Holding:
¶21      …. A defendant's failure to exercise a peremptory challenge does not result in a waiver of the defendant's right to raise on appeal the issue whether the juror's inclusion violated the defendant's constitutional right to be tried by an impartial jury. [8]
 [8]  State v. Lindell, 2001 WI 108, ¶117, 245 Wis.  2d 689, 629 N.W.2d 223 (citing State v. Gesch, 167 Wis.  2d 660, 671, 482 N.W.2d 99 (1992)).
Bias / Disqualification -- Prospective Juror's Status as Victim -- Waiver, Failure to Object
State v. William F. Williams, 2000 WI App 123, 237 Wis.2d 591, 614 N.W.2d 11
For Williams: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether the trial court had a sua sponte duty to remove for cause a prospective juror who acknowledged difficulty in putting aside her past experience as a domestic violence victim.
Holding: Failure to object waives any issue of juror bias, constraining the defendant to pursue the claim, if at all, via ineffective assistance of counsel. ¶¶19-21.
Go To Brief
Bias / Disqualification -- Waiver, Failure to Object -- Right not Personal to Defendant
State v. Gary R. Brunette, 220 Wis. 431, 583 N.W.2d 174 (Ct. App. 1998)
For Brunette: Kevin Schram
Issue/Holding:
We conclude, following Olexa, that a defendant waives an objection to a juror's bias if no motion is made to the trial court to remove the juror for cause. However, Olexa does not address Brunette's argument concerning the requirements for a valid waiver: he contends that it must be made personally by the defendant on the record. ...

We conclude that the decision whether to move to strike a potential juror for cause should not be added to those few, fundamental decisions that are reserved personally for the defendant and must be waived personally by the defendant. ...

Trial counsel's failure to move to strike Herrin for cause therefore waives Brunette's right to object to her presence on the jury. However, Brunette may assert a claim of ineffective assistance of counsel based on defense counsel's failure to object to her presence. ...


Harmless Error

Bias / Disqualification - Harmless Error: Juror Bias “Structural”r
State v. Mark H. Tody, 2009 WI 31, reversing unpublished opinion
For Tody: Byron C. Lichstein, UW Law School
Issue/Holding:
¶44      When concluding in our previous cases that a juror was biased and was erroneously impaneled, the court has reversed the defendant's conviction and ordered a new trial without inquiry into harmless error. [29] These cases reflect the rule that juror bias taints the entire proceeding and requires automatic reversal. Juror bias is a defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. Juror bias seriously affects the fairness, integrity, or public reputation of judicial proceedings and is per se prejudicial.

¶45      Although there is a dearth of authority regarding the question whether a member of the presiding judge's immediate family may serve as a juror, our decision in the present case is consistent with and is supported by two cases from other jurisdictions: Elmore v. State, 144 S.W.3d 278 (Ark. 2004); and People v. Hartson, 553 N.Y.S.2d 537 (N.Y. App. 1990). …

¶47      As we do here, the Elmore and Hartson courts both ordered new trials without inquiring into questions of prejudice or harmless error. …

Theodore W. Oswald v. Bertrand, 374 F.3d 475 (7th Cir 2004)
For Oswald: Jerome Buting
Issue/Holding:
But even if Oswald is certain to be convicted if he is retried, this cannot justify our reversing the grant of his petition for habeas corpus. Even a clearly guilty criminal is entitled to be tried before an impartial tribunal, something the jurors in this case may well have failed to understand. ... It is one of the handful of rights of a criminal defendant that is not subject to the doctrine of harmless error....
(This holding is directed to demonstrable juror bias; mishandling of peremptories is subject to different considerations, has given rise to a distinct line of caselaw, and is discussed separately, here.)

Composition of Jury

Entitlement to / Composition of – Civil Forfeiture: Environmental Regulations
State v. William F. Schweda, 2007 WI 100, on certification
Issue: Whether Wis. Const. Art. I § 5 guarantees the right to jury trial in an action seeking civil forfeiture for violations of waste disposal regulations.
Holding:

¶3        Applying the Village Food test, we determine that the claims asserted in the State's complaint do not give rise to a constitutional right to a jury trial. Common law nuisance causes of action are not sufficiently analogous to be considered "essential counterparts" to the modern day regulatory claims asserted here. Therefore, ECI fails the first prong of the Village Food test because the claims asserted did not exist, were not known, and were not recognized at common law at the time the state's constitution was adopted. Id., ¶16.

¶4        Our determination, however, does not preclude the constitutional right to a jury trial in all environmental regulatory cases. Such a right exists if the asserted claim has an essential counterpart that existed at common law in 1848 and was recognized as an action at law in 1848. Id.

¶17      While Article I, Section 5 provides that the right "shall remain inviolate," it does not apply to all matters. Historically, it has been interpreted to apply only to civil cases. Dane County v. McGrew, 2005 WI 130, ¶13, 285 Wis. 2d 519, 699 N.W.2d 890; Bennett v. State, 57 Wis. 69, 74, 14 N.W. 912 (1883). Jury trial in criminal cases falls under the purview of Article I, Section 7.

¶18      Moreover, Section 5 has been interpreted to mean that the right is preserved to the extent that it existed at the time of the adoption of the state constitution in 1848. See McGrew, 285 Wis. 2d 519, ¶15; Town of Burke v. City of Madison, 17 Wis. 2d 623, 635, 117 N.W.2d 580 (1962). Three cases comprise this state's recent jurisprudence on the question of when the right to a jury trial as it existed in 1848 creates a constitutional right to a jury trial in a contemporary cause of action, State v. Ameritech Corp., 185 Wis. 2d 686, 517 N.W.2d 705 (Ct. App. 1994), Village Food, and McGrew.

¶34      This court has demonstrated its wariness of basing a constitutional right to a jury trial on such a broad analogy. See McGrew, 285 Wis. 2d 519, ¶¶25, 28; Vill. Food, 254 Wis. 2d 478, ¶¶23-25. We are therefore cautious here as well. Having "doctrinal roots" in nuisance is not alone sufficient for a modern cause of action to be "essentially a counterpart" to nuisance actions. We note that a modern statutory claim may codify a common law nuisance action that existed, was known, or recognized in 1848 and thereby meet the first prong of the Village Food test. However, the modern cause of action requires more than a passing resemblance to the action. As we put it in Village Food, it must be "essentially [a] counterpart." Id., ¶28.

¶35      Here, the causes of action are not essentially counterparts to the public nuisance actions that existed at common law. A cause of action for public nuisance requires a showing of substantial and unreasonable harm to interests in the use and enjoyment of land. See Keeton, supra, at 580. Under historic common law nuisance, a party should not seek recovery "until an actual nuisance has been committed, or at all events until it is quite clear that the [conduct] will inevitably result in a nuisance." George V. Yool, An Essay on Waste, Nuisance, and Trespass, 95 (1863). Modern environmental regulatory laws, however, "regulate more subtle and attenuated harms than the common law of nuisance does; a land use that creates a common law nuisance is thus likely to be an a fortiori violation of statutory environmental law." Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 101 F.3d 503, 505 (7th Cir. 1996).

And just what might be the relevance of Art. I § 5 to SPD practice? Hard to say, except that you never know. Does, for example, the broad way we define causation for restitution purposes, coupled with ultimate reduction to civil judgment, impinge on the right to civil jury trial determination of damages?

Composition -- Civil Forfeitures
Dane County v. Kenneth R. McGrew, 2005 WI 130, affirming unpublished decision
For McGrew: Rex Anderegg
Issue/Holding: Wis. Const. Art. I, § 5 preserves a state constitutional right to jury trial for forfeiture violations; however, the panel is comprised of 6, rather than 12, persons. ¶70 n. 1 (Bradley, J., conc.):
Applying the Village Food test, there are four justices of the court that conclude that McGrew has a constitutional right to a jury. However, there is a split as to whether the right is to a six- or 12-person jury. Nevertheless, this opinion, together with the dissent, form a majority on the constitutional issue that such a right exists and, at a minimum, it is to a six-person jury.

This decision is not to be read, however, that there is a constitutional right to a six-person jury trial in municipal court. Rather, the right is exercised when upon appeal there is a jury trial in circuit court. See Ogden v. City of Madison, 111 Wis. 413, 87 N.W. 568 (1901) (the constitutional right to trial by jury does not extend to a prosecution for a violation of a city ordinance in municipal court).

The referenced test establishes: ""a party has a constitutional right to have a statutory claim tried to a jury when: (1) the cause of action created by the statute existed, was known, or was recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848[;] and (2) the action was regarded at law in 1848," Village Food, ¶11, as quoted in McGrew, ¶18. McGrew was charged with an ordinance violation of speeding. The McGrew majority held that the claim (of speeding) should be viewed broadly, as a "rules of the road" violation; and, because "rules of the road" existed at common law when the Wisconsin Constitution was enacted in 1848 (even if speeding did not distinctly exist), a right to jury trial for speeding is preserved, ¶¶58-60 (conc. op.).
Composition -- Criminal -- 12-Person Panel
State v. Ronald A. Hansford, 219 Wis.2d 226, 580 N.W.2d 171 (1998), on certification.
For Hansford: Suzanne Hagopian, SPD, Madison Appellate.
Issue: "(W)hether Wis. Stat. § 756.096(3)(am) [1995-96], which provides for six-person juries in criminal misdemeanor cases, violates art. I, § 7 or art. I, § 5 of the Wisconsin Constitution." ¶1.
Holding: Art. I, sec. 7, Wis. Const., guarantees a jury of 12 persons in a criminal trial, including misdemeanors, and the statute is therefore unconstitutional. The state constitution affords greater protection on this point than the sixth amendment.
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Composition -- Criminal -- 12-Person Panel, Waiver of Right to
State v. Rodney G. Zivcic, 229 Wis.2d 119, 598 N.W.2d 565 (Ct. App. 1999)
For Zivcic: John J. Carter
Holding:: The right to a 12-person jury, announced in State v. Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998), "applies only to those cases where the issue was raised before the trial court." In other words, Zivcic's failure to preserve objection to a 6-person panel deprives him of retroactive application of Hansford.

Peremptory Challenges

Peremptory Challenges -- Harmless Error
State v. Nathaniel A. Lindell, 2001 WI 108, 629 N.W.2d 223, affirming 2000 WI App 180, 238 Wis.2d 422, 617 N.W.2d 500
For Lindell: Timothy J. Gaskell
Issue: Whether a trial court’s erroneous refusal to strike for cause a juror subsequently removed by peremptory strike requires automatic reversal of the conviction.
Holding:
¶51. Now that we have determined that D.F. should have been struck for cause, we consider the proper remedy for this error. This court's decision in State v. Ramos[, 211 Wis. 2d 12, 24, 546 N.W.2d 328 (1997)] would require that we reverse Lindell's conviction and remand his case for a new trial. Yet, there is no serious argument that the defendant did not commit the offenses of which he was convicted, or that he did not receive a fair trial by an impartial jury. Hence, reversal of Lindell's conviction is counterintuitive and would certainly lead to a costly and time-consuming new trial.

¶52. The harsh reality of this option forces us to reexamine whether the result dictated by the Ramos decision makes sense for our system of justice on an ongoing basis. We conclude that it does not. Consequently, the Ramos decision is overruled.

¶53. We base our decision to overrule Ramos on several factors. First, the Ramos decision neglected to fully describe and analyze long-standing Wisconsin law on peremptory challenges and harmless error. Second, the court read too much into the Supreme Court's decision in Ross v. Oklahoma, 487 U.S. 81 (1988), and did not anticipate the decision in United States v. Martinez-Salazar, 528 U.S. 304 (2000). Third, the court has recognized some disturbing systemic problems that came out of the Ramos decision. Finally, the court has taken significant steps to address the issue of juror bias.…

¶118. Nothing in this opinion changes the fundamental law that an accused is entitled to be tried by an impartial jury. Our decision requires a defendant to make a conscious choice between exercising a peremptory challenge or waiting for a Sixth Amendment challenge after conviction. However, the State must now be more alert and sensitive to a defendant's challenge for cause. Anticipating the defendant's possible strategy, the State has three courses of action: (1) It can join the defendant in urging the court to remove a juror for cause; (2) it can exercise one of its own limited peremptory strikes to remove a juror who should have been struck for cause; or (3) it can do nothing and risk a new trial if an appellate court finds that a biased juror sat on the jury. We think the defendant's right to peremptory challenges will be effectively vindicated when prosecutors have an interest in seeing that jurors biased against the defendant never sit.

¶119. When the Ramos case was argued, the State conceded that situations might arise in which a defendant receives a fair and impartial jury but reversal is nevertheless appropriate. For example, reversal might be appropriate when a circuit court judge repeatedly and deliberately misapplies the law to force a defendant to use peremptory challenges or when the court makes errors that force a defendant to use most or all of his or her peremptory strikes. The State made the same concession in oral argument in this case.

¶120. We conclude that the Ramos case should be overruled because our good intentions did not produce good results. The time has come to acknowledge error and move forward.

But what happens when the right to exercise one or more peremptory challenges is wrongfully interfered with? See People v. Bell, MI App No. 233234, 12/9/03 ("wrongful disallowance of the exercise of peremptory challenges ... was error requiring reversal, even in the absence of a showing of prejudice"; "great weight of federal authority addressing this issue suggests that errors relating to the right to remove juors peremptorily are not subject to harmless error analysis"), although the concurrence expresses grave doubt as to this result, going so far as to ask the Michigan supreme court to reverse the holding. And note this 7th Circuit case on the arbitrary elimination of peremptories, Akeem Aki-Khuam v. Davis, 02-1945, 5/8/03: trial procedure which in effect replaced statutorily-provided peremptories with required showing of race-neutral cause violated due process and equal protection:
Petitioner had a substantial and legitimate expectation that he would be tried by a jury selected in accordance with Indiana state law and federal constitutional law, including those provisions guaranteeing his right to exercise peremptory challenges. Instead, Petitioner was deprived of his liberty by a jury whose very creation involved a denial of his statutory and constitutional rights. Consequently, Petitioner was denied due process and equal protection of the law in violation of the Fourteenth Amendment.
(Interestingly, the 7th Circuit granted habeas relief without discusison of harmless error.)
Peremptory Challenges -- Harmless Error
State v. Robert A. Mendoza, 227 Wis.2d 838, 596 N.W.2d 736 (1999), reversing State v. Mendoza 220 Wis.2d 803, 584 N.W.2d 174 (Ct. App. 1998).
For Mendoza: Michael K. Gould, SPD, Milwaukee Appellate.
Holding: The trial court struck four jurors, at the state's request, merely because they had criminal records. "That was an error of law." ¶24. The court, however, goes on to review whether each such juror should have been struck for cause. One juror had recently pled guilty to misdemeanor possession of cocaine and was waiting to serve his 16-day sentence. This juror, the court holds, was objectively biased, because his "contact with the criminal justice system was recent and continuing." ¶34. The second juror had a 1966 conviction for armed robbery and two, more recent misdemeanors; he evinced "residual hostility" about these experiences, thus establishing objective bias. ¶¶35-36. The third juror, convicted of burglary and sentenced to 18 months in 1994, denied guilt, and was objectively biased: "A person who believes he was once set up and that others are set up for crimes may not be an impartial juror." ¶38. Only the fourth juror - convicted more than 30 years before, and not harboring any apparent negative feelings with the system, isn't deemed biased. ¶¶39-40. This given error doesn't lead to relief. Mendoza argues that the net effect of erroneously striking a juror for cause at the state's behest is to give the state an additional peremptory. The supreme court disagrees. Peremptory challenge is qualitatively different from cause-based challenge. Erroneous dismissal is an error by the court, not a peremptory challenge by a party. ¶¶47-54. The court nonetheless proceeds to discuss the impact of giving the state an extra peremptory. "This case presents the flip side of Ramos: a court's erroneous dismissal of a prospective juror as opposed to a court's erroneous failure to dismiss." ¶57. Courts are encouraged to grant cause-based requests liberally; the failure to follow this admonition resulted in Ramos being deprived his full complement of peremptories. Mendoza, on the other hand, wasn't required to correct an error with a peremptory. ¶58. "We therefore hold that automatic reversal is not required when a circuit court erroneously grants a party's motion to strike a prospective juror for cause. To hold otherwise would undermine our long-standing assertion that circuit court judges should liberally grant requests to strike prospective jurors for cause." ¶63. Mendoza concedes that an impartial jury heard the case, and the error is deemed harmless.
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Peremptory Challenges -- Timing -- Authority to Correct Mistake Between Time Jury Accepted and Sworn -- Harmless Error
State v. Carl N. Nantelle, 2000 WI App 110, 235 Wis.2d 91, 612 N.W.2d 356
For Nantelle: William E. Schmaal, SPD, Madison Appellate
Issue: Whether a trial court has authority to correct an attorney's mistaken use of a peremptory strike after the jury is accepted by the parties but before it is sworn.
Holding: "(A)s a matter of law ... peremptory challenges may not be exercised, and therefore changed, after the parties have accepted the jury." ¶22. (Even if error, it would be harmless.)
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Presence at Voir Dire

Selection -- Presence of Defendant and Counsel at Voir Dire
State v. George S. Tulley, 2001 WI App 236
For Tulley: Patrick M. Donnelly
Issue: Whether excluding defendant and his attorney from in camera voir dire of several jurors was reversible error.
Holding: A defendant has both constitutional and statutory rights to be present, with assistance of counsel, at voir dire, and the trial court therefore erred in excluding them from the in camera proceedings. ¶6. However, deprivation of these rights is not subject to automatic-reversal and, largely because the court excluded the jurors interviewed in camera, the error was harmless. ¶11. State v. Harris, 229 Wis. 2d 832, 601 N.W.2d 682 (Ct. App. 1999) distinguished.
On-line brief for Harris.)
(Note: Beyond narrowly distinguishing Harris on the facts, the court cites no authority for the idea that denial of assistance of counsel at a critical stage is subject to harmless error analysis.)
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Selection -- Defendant's Right to Presence
State v. Garren G. Gribble, 2001 WI App 227, PFR filed
For Gribble: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether the trial court erred in questioning prospective jurors outside the presence of defendant and counsel, on “hardship and infirmity requests” not to serve.
Holding: Questioning jurors about undue hardships “does not implicate the purposes of voir dire that are the premise for a defendant’s constitutional entitlement to be present with counsel” (namely, introduction to substantive factual and legal issue, and disclosure of information relevant to bias): “We therefore conclude that Gribble did not have a federal or state constitutional right to be present with counsel when the court questioned the prospective jurors to determine whether to excuse or defer service of any under § 756.03.” ¶16. Nor did this procedure violate any statutory right:
¶18 … The legislature could not have intended to require the defendant's presence when the judge or clerk is acting in an administrative capacity under § 756.03. In contrast, the procedure by which a court questions jurors to determine bias under Wis. Stat. § 805.08(1) takes place after the jurors are sworn in, with the jurors and parties present, and involves the judge ruling on objections-that is, functioning in a judicial capacity rather than in an administrative capacity. We conclude that the procedure described in § 805.08(1) is the ‘voir dire of the trial jury’ referred to in § 971.04(c).
(Nor is such “hardship questioning” a “proceeding” which must be reported under SCR 71.01(2). ¶19.)
Selection -- Defendant's Right to Presence
State v. Larry D. Harris, 229 Wis.2d 832, 601 N.W.2d 682 (Ct. App. 1999)
For Harris: William S. Coleman, SPD, Milwaukee Appellate
Issue/Holding1: A defendant has both a non-waivable statutory (§ 971.04(1)(c)) and constitutional (6th / 14th amendment; Art. I, § 7) right to presence at voir dire; and, because voir dire is a "critical stage" of prosecution the defendant also has the right to representation of counsel.
Issue/Holding2: Conducting part of voir dire in absence of both defendant and counsel was error, and not subject to harmless error analysis:
This case is substantially different from those applying the “harmless error” rule for two major reasons. First, a defendant has an absolute right “to receive a fair trial by a panel of impartial jurors.” ... A potential juror’s subjective bias is generally ascertained by that person’s “responses and demeanor at voir dire.” ... Unless a defendant and his or her lawyer are present when potential jurors are questioned, the subtleties of responses are lost—even if a transcript is made available to the defendant and defense counsel (this was not done here). ...

Second, “the interplay between potential jurors and a defendant, while often subtle, is both immediate and continuous.” State v. Garcia-Contreras, 953 P.2d 536, 541 (Ariz. 1998). Here, as in Garcia-Contreras, “[n]o one can tell what the prospective jurors might have thought when all of the key players were introduced save the defendant, whose whereabouts were left mysteriously unexplained” and the “[d]efendant’s absence may have damaged him in the eyes of the jury—some may have thought he had irresponsibly failed to show up for the first day of his trial.” Ibid.

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JURY COSTS

Jury -- Costs – § 814.51, Assessed Against State
Flottmeyer and Monroe Co. D.A.’s Office v. Circuit Court for Monroe Co., 2007 WI App 36
Issue/Holding1: Jury fees may be assessed against the State under § 814.51 for canceling a jury 2 days before the scheduled trial, notwithstanding that the statutory text refers to “plaintiff” rather than “State.”
Martineau v. State Conservation Commission, 54 Wis. 2d 76, 79, 194 N.W.2d 664 (1972) requires that “costs may not be taxed against the state or an administrative agency of the state unless expressly authorized by statute.” However, the statutory reference to “plaintiff” is broad enough to encompass the “State,” ¶¶9-13:
¶14      In sum, we conclude that the term “plaintiff” in Wis. Stat. § 814.51 is an express reference to the State for purposes of the Martineau rule here. Accordingly, we reject the State’s argument that the circuit court lacked authority to impose jury fees against the State.
A tangential point of possible parochial interest: what about the Office of the State Public Defender? It’s a state agency, entitled to sovereign immunity but unlike the “State” in its prosecutorial modality not a party to the litigation. The issue was unsuccessfully litigated some time ago, not necessarily well to be sure, but then again the court’s discussion was somewhat less than edifying: OSPD v. Dunn County, 98AP1659. It’s not that this new case establishes SPD sovereign immunity, but that it keeps the question alive.
Issue/Holding2: The decision to assess jury fees under § 814.51 is subject to the same discretionary considerations as the inherent exercise of such authority (see Patricia O’Neil v Monroe County Circuit Court, 2003 WI App 140), ¶16. That exercise was properly made where, although the prosecutor was informed only on the eve of trial that the complainant would not appear to testify despite prior assurance, the prosecutor had not personally spoken with that witness in several months, ¶¶16-24 (the court of appeals stressing that the trial judge had not assigned personal blame to the prosecutor but instead faulted the district attorney’s office for not doing more to keep in contact with the complainant, ¶¶23-24).
Support for the result is awfully thin. The complainant said she’d show up and had in fact been served with a subpoena. What more could the office have done? This, and nothing more: “In particular, although the prosecutor advised the court that she was informed two or three weeks prior to the trial date that the witness had indicated to the victim-witness coordinator that she would appear, the prosecutor did not indicate whether the witness had been contacted since that time, despite the fact that it was known that the witness had moved to Chicago,” ¶24. Gloat if you want, just remember that jury fees may also be assessed against defense counsel, in other words, that this particular door swings both ways.
JURY DELIBERATIONS

Deliberations – Trial Court Response to Jury Question: Waiver of Objection by Failure to Object
State v. Christopher F. Becker, 2009 WI App 59, PFR filed 5/8/09
For Becker: Jeremy C. Perri, SPD, Milwaukee Appellate
Issue/Holding: By failing to object, defendant waived right to challenge judicial response to deliberating jury's question, notwithstanding conceded unanimity problems in the response:
¶15   Nevertheless, we must agree with the State and hold that Becker waived his argument that the trial court erroneously exercised its discretion in answering the jury’s question in the manner it did. At the time the trial court announced its intention to provide the challenged answer to the jury’s question, Becker’s trial counsel did not object to it. Indeed, he appears to have expressly “okayed” it …

¶17   Here, the answer the trial court gave to the jury’s question regarding its instruction became part of its instruction to the jury. Thus, as in Marcum, this appeal rests on claimed errors in the jury instructions. See Marcum, 166 Wis. 2d at 915. And, like Marcum, Becker has a timing issue with his objection. Because Becker’s objection came too late; we will not review the instruction to the jury “in the context of whether the trial court erred.” See id. at 916.

The objection is reviewable under an ineffective-assistance claim, ¶18. Obvious, perhaps, but worth noting nonetheless: an answer to a jury question becomes "part of" the jury instructions.
Deliberations – Question from Jury, Trial Court’s Failure to Respond -- Harmless Error
State v. Nathaniel L. Cox, 2007 WI App 38, PFR filed 3/16/07
For Cox: Joseph E. Redding
Issue/Holding: Any error in the trial court’s failure to respond to the jury’s request to inspect a photograph never admitted in evidence was harmless:
¶20      Even if we were to agree with Cox that he had a right to argue for the reopening of the evidence, and if we further assumed that he could have convinced the court to submit the picture to the jury, we would still need to find some likelihood that the verdict would have been different. Cox asserts that there is a “strong possibility” of a different result, but does not tell us why. He states that the jury may have been considering his self-defense theory, wanting to know “how hard the victim rammed his car into [the girlfriend’s] car to determine how much force was reasonably necessary for Cox … to stop a second such action.” This is a non sequitur. Cox’s self-defense theory was that he fired at the victim’s car because he believed the victim intended to run him over. Cox provides us with no explanation of how the extent of damage to the girlfriend’s unoccupied car bears on the reasonableness of Cox’s belief that the victim would try to hit him next. We therefore agree with the State that any error by the trial court was harmless beyond a reasonable doubt.
Deliberations – Police Reports Submitted to Jury
State v. Eric D. Cooks, 2006 WI App 262
For Cooks: Joseph E. Redding
Issue/Holding:
¶40      While the general rule in Wisconsin is to read a statement to a deliberating jury rather than to physically submit it, that rule is not absolute. See State v. Mayer, 220 Wis. 2d 419, 425, 583 N.W.2d 430 (Ct. App. 1998). Here, Cooks does not claim that the statements contained improper hearsay and giving the jury the written statements would not have unfairly emphasized the State’s case. The core issue in this case was identification. Various witnesses had gone to the police and sworn out statements implicating Cooks and then went back to the police and recanted those statements and then “unrecanted” at trial. Barth argued to the jury that the witness statements contained in the police reports might have been the product of improper police bias or error and urged the jury to closely evaluate the accuracy of the reports. With the written statements before them, the jury would have been able to do just that.
Deliberations – Showing of Videotape in Jury Room Rather Than Open Court
State v. Lionel N. Anderson, 2006 WI 77, reversing 2005 WI App 238
For Anderson: Harry R. Hertel
Issue/Holding:
¶31      By playing the recording in open court during jury deliberations, the circuit court can guarantee that the jury does not play the recording multiple times and may instruct the jury as necessary to minimize the risk of overemphasis. For example, the circuit court might remind the jury, in open court, that it should not unduly emphasize the recording over in-court testimony of witnesses or over other evidence.

¶32      In Franklin v. State, 74 Wis.  2d 717, 724-25, 247 N.W.2d 721 (1976), the court explained the reasons for playing an audiotape for the jury in the courtroom during its deliberations …

¶33      Although the Franklin case involved an audiotaped interview with the accused, the procedure set forth in that case applies just as forcefully to a victim's videotaped interview. The same considerations are present in both instances. …

¶34      We conclude that the circuit court failed to adhere to the procedure set forth in the Franklin decision and therefore erred in allowing the jury to see and hear the videotape in the jury room during deliberations rather than in open court on the record.

Deliberations – Communications by Court Outside Presence of, and without Notice to, Defense – Failure to Object
State v. Lionel N. Anderson, 2006 WI 77, reversing 2005 WI App 238
For Anderson: Harry R. Hertel
Issue/Holding:
¶36      The parties agree with the court of appeals that the circuit court's communications with the jury outside the presence of the defendant is error, violating the defendant's constitutional and statutory right to be present.  We agree with the parties.

¶63      (W)hatever the requirement for an accused's waiver of the right to be present when a circuit court communicates with the jury, something more than the failure to object is needed to convert the challenge from a direct challenge to the alleged error to a claim of ineffective assistance of counsel.  

¶64      We conclude that although neither the defendant nor defense counsel objected to the circuit court's communicating with the jury in the defendant's absence, the alleged error is treated as a direct challenge in the appellate court, not as a claim of ineffective assistance of counsel.

Jury deliberations is a “critical stage” for purposes of attachment of right to counsel, such that judicial communications to the jury during deliberations without notice to the defense violates right to counsel; mere failure to object doesn’t establish waiver because it isn’t accompanied by the colloquy necessary for waiver of counsel. However, harmless error analysis does apply. ¶¶65-76. Doesn't denial of counsel at a "critical stage" trigger the automatic-reversal ("structural error") rule? If so, there is a disconnect between the court's determination that there was indeed denial of counsel at a critical stage but that harmless error analysis nonetheless applied. For authority that under clearly established Supreme Court precedent, re-instructing the jury is a critical stage; and that counsel's absence from a critical stage is necessarily prejudicial, see Caver v. Straub, 01-2649, 6th Cir. 11/19/03. And, just to confuse things a bit, a slightly different panel of the very same court a few days later held that counsel's absence from supplemental instructions was not prejudicial, at least where they were identical to instructions given at the original charge. Hudson v. Jones, 02-1586, 6th Cir. 12/3/03:
... Because the trial judge here simply repeated, at the jury’s request, specific instructions that had previously been given in the presence of Hudson’s counsel, we conclude that their repetition should not be deemed a “critical stage in the proceedings.” Prejudice to Hudson will therefore not be presumed under Cronic, and no actual prejudice has been shown....
Although Hudson somewhat oddly doesn't even mention Caver, note that the result reaches an issue left open, and therefore doesn't really conflict with, Caver, n. 8:
8 We note that the panel in French v. Jones, while holding that jury re-instruction is a critical stage and that prejudice may be presumed if trial counsel is absent, did not place any limits on what types of jury reinstruction would be considered “critical.” French v. Jones, 332 F.3d 430, 438-39 (6th Cir. 2003). As the re-instruction in the instant matter involved new and supplemental information conveyed to the jury, similar to that jury re-instruction in French, we express no opinion on whether or not a jury re-instruction that does not convey new and supplemental information is similarly a “critical” stage in a trial.
Detailed discussion "as to what constitutes a 'critical stage' (at least for federal habeas purposes), in Musladin v. LaMarque, 9th Cir No. 03-16653, 2/12/09 (court concludes that, were it reviewing the issue "de novo," it would impose an "automatic reversal" rule where the trial court responds to a deliberating jury's quest for re-instruction without first affording counsel the opportunity for input; but, where the jury is merely reinstructed prejudice must be shown: "the potential impact of defense counsel’s inability to participate is significantly lessened, because defense counsel played a role in the formulation of those instructions").
Deliberations – Communications by Court – Necessity of Making Record
State v. Lionel N. Anderson, 2006 WI 77, reversing 2005 WI App 238
For Anderson: Harry R. Hertel
Issue/Holding:
¶77      We now consider whether the circuit court committed error by failing to make a record of or preserve a record of its statements or comments to the jury relating to the case.

¶78      Wisconsin Stat. § 805.13(1) requires that all statements or comments by the circuit court judge to the jury relating to the case shall be on the record:

Statements by judge. After the trial jury is sworn, all statements or comments by the judge to the jury or in their presence relating to the case shall be on the record. [52]
¶79      The circuit court's statements or comments to the jury in the instant case were not on the record. Thus, the circuit court erred by failing to comply with Wis. Stat. § 805.13(1).
Though such an error may be harmless, “In light of the absence of a sufficient record, an appellate court will have great difficulty concluding that the circuit court's erroneous procedure in communicating with the jury was harmless error,” ¶81.
Deliberations – Jury Request to Have Testimony Re-Read
State v. Lionel N. Anderson, 2006 WI 77, reversing 2005 WI App 238
For Anderson: Harry R. Hertel
Issue Whether the circuit court erred in refusing to have the defendant’s and complainant’s testimony re-read while at the same allowing the jury to review the complainant’s videotaped interview.
Holding:
¶91      When the circuit court in the present case failed to follow up on the jury's request for further information, we conclude that it in effect denied the jury's request to have the testimony read back.

¶92      Having established that the circuit court's actions constitute a refusal of the jury's request to have the testimony read back, we now proceed to determine whether that refusal was an erroneous exercise of the circuit court's discretion.

¶101    The circuit court used a different standard in determining whether to send the victim's videotaped interview into the jury room and whether to read the in-court testimony to the jury. …

¶102    The circuit court viewed the reading of testimony as cumbersome and perhaps unnecessary. It did not apply that test to the videotape. 

¶103    In sending the videotape into the jury room, the circuit court erroneously stated that the videotape was not a direct examination of the victim but was offered to corroborate her testimony. But it had the effect of a direct examination. The victim's in-court testimony was essentially the same as the videotape. …

¶107    The result of the circuit court's decision in the present case is obvious: The direct testimony of the State's most significant witness could be replayed in its entirety while the jury was not permitted to hear again the in-court testimony and cross-examination of the victim or the defendant, even though the jury believed it needed the in-court testimony to decide the case.

Deliberations – Exposure to Extraneous Information
State v. Jeffrey Lorenzo Searcy, 2006 WI App 8
For Searcy: Joseph L. Sommers
Issue/Holding:
¶33      If, as here, the defendant meets the threshold burden of showing juror competency to testify under Wis. Stat. § 906.06(2), the trial court must conduct two additional analyses to decide if a new trial is warranted. See State v. Broomfield, 223 Wis. 2d 465, 479, 589 N.W.2d 225 (1999). First, the trial court must make the “factual determination whether ‘one or more jurors made or heard the statements [in question] or engaged in the conduct alleged.’” State v. Wulff, 200 Wis. 2d 318, 328, 546 N.W.2d 522 (Ct. App. 1996) (citation omitted), rev’d on other grounds, 207 Wis. 2d 143, 557 N.W.2d 813 (1997). The defendant must prove the facts by clear, satisfactory and convincing evidence. Id.; Castaneda v. Pederson, 185 Wis. 2d 199, 211-12, 518 N.W.2d 246 (1994). A trial court’s factual determinations on this first inquiry will not be overturned unless clearly erroneous. See Broomfield, 223 Wis. 2d at 479-80 (citing Wis. Stat. § 805.17(2)). If the defendant shows that the alleged statements were made or the alleged conduct occurred, the trial court must determine whether the extraneous information produced prejudice requiring reversal of the verdict. Broomfield, 223 Wis. 2d at 479.

¶34      Here, the trial court determined that Searcy failed to establish by clear and convincing evidence that jurors were exposed to prejudicial information concerning Searcy’s prior burglary convictions through a juror’s research on CCAP. …

¶39      In light of the ambiguous, indefinite and equivocal nature of Szabo’s testimony, the trial court was well within its rights to reject her testimony as incredible and conclude that Searcy failed to prove by clear, satisfactory and convincing evidence that the jury had been exposed to extraneous prejudicial information concerning Searcy’s prior convictions. [7] Because we uphold the trial court’s determination on this point, we need not address the question of whether the jury’s exposure to extraneous information constitutes prejudicial error requiring reversal of the verdict. [8]

Court recommends that instruction committee “consider revising Wis JI—Criminal 50 to instruct jurors that they are not to access the Wisconsin Court System website, the Wisconsin Circuit Court Access website or the local circuit court’s website,” fn. 8.

Extraneous contact distinguished from ex parte contact: U.S. v. Rosenthal, 9th Cir No. 03-10307, 4/26/06 ("Where ex parte communication is involved, ... the defendant generally must demonstrate 'actual prejudice[.]' ... [¶] Extraneous-information cases, by contrast, call for more searching review").

Deliberations -- Exposure to "Poorly Recorded Audio Tapes"
State v. Domingo G. Ramirez, 228 Wis.2d 561, 598 N.W.2d 247 (Ct. App. 1999).
For Ramirez: Donald T. Lang, SPD, Madison Appellate
Issue/Holding: Taped conversations between an informant and defendant were properly admitted and played at trial. The jury was then allowed to hear the tapes during deliberations - Ramirez claims that they were of such poor quality that he's entitled to new trial in the interest of justice. The court rejects the argument, seemingly because the jury had already heard both tapes and the informant's testimony anyway.
Go To Brief
Deliberations -- Submission of Witness's Statement
State v. Greg A. Mayer, 220 Wis. 2d 419, 583 N.W.2d 430 (Ct. App. 1998)
For Mayer: Joseph E. Redding
Issue/Holding: Although the "general rule" in Wisconsin is to read a witness's statement to the jury rather than submitting it to them, the rule is not absolute. The trial court properly exercised discreiton in allowing such a submission where the statement "was of considerable use to the jury."
DISMISSAL OF JUROR (POST-VOIR DIRE)

Dismissal of Juror, Post-Voir Dire, Generally
State v. Jose F. Gonzalez, 2008 WI App 142, PFR filed 9/11/08
For Gonzalez: Dianne M. Erickson
Issue/Holding:
¶12      Specific proof of bias is not required for a judge to dismiss a juror during a trial, as it would be to overturn an adverse verdict. State v. Williams, 220 Wis. 2d 458, 466, 583 N.W.2d 845 (Ct. App. 1998). Instead, upon determining that dismissal of a juror may be required, the trial court should proceed as follows:
[I]t is the [trial] court’s duty, prior to the exercise of its discretion to excuse the juror, to make careful inquiry into the substance of the request and to exert reasonable efforts to avoid discharging the juror. Such inquiry generally should be made out of the presence of the jurors and in the presence of all counsel and the defendant. The juror potentially subject to the discharge should not be present during counsel’s arguments on the discharge. The [trial] court’s efforts depend on the circumstances of the case. The court must approach the issue with extreme caution to avoid a mistrial by either needlessly discharging the juror or by prejudicing in some manner the juror potentially subject to discharge or the remaining jurors.
Lehman, 108 Wis. 2d at 300 (footnote omitted).
Dismissal of Juror, Post-Voir Dire: Belated Discovery that Juror Knew Witness and Defendant
State v. Jose F. Gonzalez, 2008 WI App 142, PFR filed 9/11/08
For Gonzalez: Dianne M. Erickson
Issue/Holding: Dismissal of seated juror prior to deliberations, upon belated discovery that juror had gone to school with defendant and a State’s witness, was a proper exercise of discretion based on the trial court’s reasoning that the juror’s “memory might be jogged … and that this might affect [the juror’s] ability to deliberate impartially.”
¶18      The trial court in this case did precisely what the court in Meehan stated is proper. Juror Molenda was questioned by the trial court and was asked about any connection she might have to Gonzalez and LaGosh. Juror Molenda stated that she went to the schools that LaGosh said she did, specifically the middle school that Gonzalez and LaGosh attended. The record reflects that the trial court did not dismiss Juror Molenda based on nonverbal expressions; rather, it was the risk Juror Molenda’s memory would be jogged at some point in the deliberations that drove the trial court’s decision.

¶19      Gonzalez claims that his right to a particular jury was infringed on by the trial court’s removal of Juror Molenda. Gonzalez relies on People v. Whyte, 725 N.Y.S.2d 347, 348 (N.Y. App. Div. 2001), a case where a new trial was granted for the defendant on the grounds that the defendant’s right to a trial by a jury that he selected was impinged when the lower court judge removed a juror who knew one of the state’s witnesses. The facts of Whyte are distinguishable from Gonzalez’s case in that, here, the trial court dismissed Juror Molenda for her potential knowledge of the defendant and a witness, not just a witness, as in Whyte.

The procedure established by § 805.08(2) (removal of “excess jurors” by lot) isn’t controlling because the trial court has independent discretion to remove a juror for cause, ¶¶20-22.
Dismissal of Juror -- Nonverbal Expressions During Trial
State v. Kevin S. Meehan, 2001 WI App 119
For Meehan: Pamela Moorshead, Buting & Williams
Issue:Whether the trial court properly dismissed a juror during trial for certain "nonverbal expressions."
Holding: ¶35 n.7:
What happened in this case disturbs this court. Without any voir dire, the trial court struck a juror based on nonverbal reaction during a witness's testimony. The dismissal was based on observations of the juror's demeanor during the trial by a police detective, the prosecutor, and the trial court. We strongly discourage trial courts from striking jurors for cause based on nonverbal expressions made throughout the course of the trial without conducting a proper voir dire to determine if the juror is unable to be impartial. We need not directly decide this issue, however, because our decision on the other issues disposes of this appeal. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (we decide cases on the narrowest possible grounds).
Dismissal of Juror -- Defendant's Presence -- Waiver
State v. Audrey A. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999), habeas denied, Edmunds v. Deppisch, 7th Cir No. 02-1896, 12/18/02
For Edmunds: Dean A. Strang
Issue/Holding: Edmunds waived her right to be present when the parties and the court discussed dismissal of a juror for cause. The dismissal is upheld, where the juror conveyed opinions about the case, before hearing all evidence.
Dismissal of Juror -- Revelation that During Voir Dire Juror Had not Been Truthful About Prior Record
State v. Lawrence, 220 Wis. 2d 458, 583 N.W.2d 845 (Ct. App. 1998)
For Williams: Richard L. Zaffiro
Issue: Whether the trial court erred in dismissing a juror after being informed that the juror had not been truthful during voir dire. Holding:
Although a trial court in Wisconsin may not substitute an alternate for a deliberating juror, State v. Lehman, 108 Wis.2d 291, 292, 321 N.W.2d 212, 213 (1982), it "has discretion to discharge a regular juror during trial for cause," id., 108 Wis.2d at 299, 321 N.W.2d at 216. Failure to respond truthfully to voir dire questions is sufficient cause to discharge a juror during the trial. United States v. Zambito, 315 F.2d 266, 269 (4th Cir. 1963), cert. denied, 373 U.S. 924. Contrary to Williams's contention, specific proof of bias is not required, as it is when a party seeks to overturn an adverse verdict, see State v. Wyss, 124 Wis.2d 681, 726, 370 N.W.2d 745, 766 (1985), overruled on other grounds, State v. Poellinger, 153 Wis.2d 493, 451 N.W.2d 752 (1990). See Zambito, 315 F.2d at 269. Moreover, a party has no right to insist on the retention of a juror merely because that juror might be biased in the party's favor. Ibid.

The exercise of discretion, of course, "contemplates a process of reasoning" based on the facts of record. Lehman, 108 Wis.2d at 300, 321 N.W.2d at 217. In this case, the trial court weighed the appropriate considerations and determined that the integrity of the trial and of the jury deliberation would be advanced if the case was given to the twelve remaining jurors; it was a reasonable decision under the circumstances. The trial court did not erroneously exercise its discretion.

JURY INSTRUCTIONS


Ex Parte Judicial Communications

Communications by Court to Jury Outside Presence of, and without Notice to, Defense
State v. Lionel N. Anderson, 2006 WI 77, reversing 2005 WI App 238
For Anderson: Harry R. Hertel
(See above. Further discussion, unauthorized communications between judge and jury, see Thomas O. Moore v. Knight, 368 F.3d 936 (7th Cir. 2004).)
Ex Parte Judicial Communication
State v.Mark A. Peterson, 220 Wis. 2d 474, 584 N.W.2s 144 (Ct. App. 1998)
For Peterson: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding: Answering questions from jury was harmless error at most:
Section 971.04, Stats., requires the defendant to be present during several enumerated proceedings. Peterson alleges that the court erred by failing to obtain either his presence or waiver before addressing the jury questions. We will assume without deciding that these proceedings do fall under § 971.04.5 Nevertheless, we conclude that the error arising from the violation of Peterson's statutory right was harmless.

Harmless Error

Instructions – Harmless Error – Correct but “Incomplete” Instruction – Obstructing, “Lawful Authority”
State v. Kelly R. Ferguson, 2009 WI 50, reversing unpublished opinion
For Ferguson: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: Where it was clear not only that Ferguson obstructed the police outside her apartment but also that the jury so found, arguable omission of a “complete” instruction on whether the police acted with lawful authority in entering her apartment was harmless:
¶43      The jury instruction here was a correct statement of the law for police actions outside of Ferguson's home. Therefore, although one may argue that the jury instruction was incomplete because it did not instruct on exigent circumstances, it did instruct relative to the actions of the police in arresting Ferguson once they were outside of her home where she continued her resistive course of conduct.

¶44      It is true that a jury instruction that is incomplete, but is in all other respects a correct statement of the law, may be erroneous. See State v. Perkins, 2001 WI 46, ¶43, 243 Wis. 2d 141, 626 N.W.2d 762 (concluding that the jury instruction was erroneous because it failed to adequately define the element of "threat" for the offense of intentional threat to a judge); see also Rose v. Clark, 478 U.S. 570, 579-80 (1986) (explaining that a jury instruction was erroneous because, while it did instruct the jury on the "malice" element of the charged offense, it erroneously shifted the burden of proof). However, here any incompleteness in the instruction did not fail to define lawful authority.

¶45      Based on the test set forth in Harvey, we conclude that if the failure to instruct the jury on exigent circumstances was error, it was harmless. Under Harris, the police were acting with lawful authority in continuing their arrest of Ferguson as they escorted her down the apartment building stairway and placed her in the squad car. Ferguson did not discontinue her resistive conduct when police removed her from her home. As a result, we can conclude that if the jury had been instructed on exigent circumstances as well as the instruction given, it is clear beyond a reasonable doubt that the jury would have convicted Ferguson of obstruction. Harvey, 254 Wis.  2d 442, ¶48.

The underlying rationale is spelled out a bit more clearly by the 3-Justice concurrence:
¶63      I conclude, however, that even if the entry and arrest for disorderly conduct were unlawful, the obstructing was sufficiently separate in time and location from any potentially unlawful conduct by the police. See State v. Annina, 2006 WI App 202, ¶11, 296 Wis. 2d 599, 723 N.W.2d 708 (citing with approval United States v. Bailey, 691 F.2d 1009, 1017-18 (11th Cir. 1982)) ("[T]he police may legally arrest a defendant for a new, distinct crime, even if the new crime is in response to police misconduct and causally connected thereto.").
Instructions - Harmless Error - Alternative “Interest of Justice” Remedy
State v. Jonathan J. Hubbard, 2007 WI App 240, reversed on other grounds, 2008 WI 92
For Hubbard: Steven Zaleski
Issue/Holding: The court of appeals has interest-of-justice authority, § 752.35, to review instructional error without regard to effect on “the substantial rights of” the aggrieved party:
¶18   … This is appropriate when we conclude that the real controversy has not been fully tried or that it is probable that justice has miscarried. Id. When we invoke our discretionary reversal power on grounds that the real controversy has not been tried, we need not determine whether the outcome of the trial would have been different on retrial. See Vollmer v. Luety, 156 Wis. 2d 1, 19, 456 N.W.2d 797 (1990).

¶19   Discretionary reversal may be exercised where an erroneous or deficient jury instruction results in a controversy not being fully tried. See, e.g., id. at 19; Air Wisconsin, Inc. v. North Cent. Airlines, Inc., 98 Wis. 2d 301, 318, 296 N.W.2d 749 (1980); State v. Perkins, 2001 WI 46, ¶49, 243 Wis. 2d 141, 626 N.W.2d 762. Jury instructions must have two key characteristics in order to protect the integrity of our jury system: (1) legal accuracy, and (2) comprehensibility. When juror comprehension is compromised, factors that are irrelevant or inappropriate to the controversy at hand may infect the deliberations. … Unclear instructions “lead to uncertainty about how to apply the law to the facts, which may invite the jury to decide the case without regard to the facts or the law.” Id. Therein lies our concern about this case. Although the standard instructions given here were arguably legally sufficient, the jury admitted that it did not fully comprehend the term “materially impaired.” The circuit court had the opportunity to address the jury’s confusion, but chose not to offer the jury the case law definition of the troublesome term. We are convinced that the real controversy here has not been fully tried because the jury did not understand a key legal concept of the charge before it. Accordingly, a new trial in the interest of justice is warranted.

The supreme court subsequently reversed the grant of relief, but on the distinct ground "that the circuit court's response to the jury's request for clarification was not error," 208 WI 92, ¶5. Nothing in that opinion undermines the general points made in the block quote above, which therefore should retain precedential effect.
Instructions -- Harmless Error -- Omitted Element
State v. Gary L. Gordon, 2003 WI 69, reversing 2002 WI App 53, 250 Wis. 2d 702, 641 N.W.2d 183
For Gordon: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: Failure to instruct the jury on an essential element of the crime is subject to harmless error analysis, rather than automatic reversal. ¶¶31-42. “We reverse State v. Howard, 211 Wis. 2d 269, 290-95, 564 N.W.2d 753 (1997), State v. Avila, 92 Wis. 2d 870, 891-93A, 532 N.W.2d 423 (1995), and State v. Krueger, 240 Wis. 2d 644, 649-51, 632 N.W.2d 211 (Ct. App. 2000), to the extent that those cases established a rule of automatic reversal where a jury instruction omits an element of the offense.” ¶5. (Note: the cite to Krueger is slightly off; the public domain cite is 2001 WI App 14.) This result is compelled by Neder v. United States, 527 U.S. 1 (1999), and State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189. Id. (Whether or not Harvey (mandatory conclusive presumption subject to harmless error) is really controlled by Neder (omitted element subject to harmless error) is both separate and not quite as resolved as the court suggests. See, e.g., Powell v. Galaza, 9th Cir. 01-15195, 5/6/03 (“Because ‘there has been no jury verdict within the meaning of the Sixth Amendment,’ harmless error review is inapplicable here.”).)
Instructions -- Harmless Error -- Mandatory Conclusive Presumption
State v. Leonard J. Harvey, 2002 WI 93, affirming 2002 WI App 59, 242 Wis. 2d 189, 625 N.W.2d 892
For Harvey: Margaret A. Maroney, Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: Instructional error in directing jury to take as given element of offense is subject to harmless error analysis:
¶48. The elemental fact on which the jury was improperly instructed is undisputed and indisputable: Penn Park is a city park, and no one says otherwise. Accordingly, it is clear beyond a reasonable doubt that a properly instructed, rational jury would have found the defendant guilty of the enhanced offense. Under these circumstances, the error cannot have contributed to the verdict.
¶49. Therefore, while we conclude that the judicial notice jury instruction, as applied to the "city park" element of the enhanced drug offense in this case, operated as a mandatory conclusive presumption in violation of Harvey's Fifth and Sixth Amendment rights, we nevertheless affirm his conviction. A constitutional or other error is harmless if it is "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." Neder, 527 U.S. at 18. By this standard, this error was harmless beyond a reasonable doubt.
§ 961.49, it should be noted, is strict liability -- the State doesn't need to prove that the defendant knew s/he was within 1000 feet of the proscribed area -- and therefore the actual distance is the only potential point of dispute. State v. Hermann, 164 Wis.2d 269, 474 N.W.2d 906 (Ct. App. 1991).
Instructions -- Harmless Error -- Mandatory Conclusive Presumption
State v. John Tomlinson, Jr., 2002 WI 91, affirming 2002 WI App 212, 247 Wis. 2d 682, 635 N.W.2d 201
For Tomlinson: John J. Gray
Issue: Whether a mandatory conclusive jury instruction ("Dangerous weapon means a baseball bat") is subject to the harmless error rule.
Holding: The instruction, though erroneous, was harmless, which requires that it be clear beyond reasonable doubt that the error didn't contribute to the verdict. ¶¶59-60, citing Neder v. United States, 527 U.S. 1 (1999) and State v. Harvey, 2002 WI 93. A rational jury would have concluded, under proper instruction, that a baseball bat -- especially when used to strike someone in the head -- was calculated or likely to produce death or great bodily harm, and therefore was in fact a dangerous weapon. ¶63.
Contrast Powell v. Galaza, 9th Cir. 01-15195, 5/6/03:
The instruction here, however, is effectively the same as a directed verdict for the state, because the judge instructed the jury that the only contested element of the offense had been satisfied. In contrast to Carella, Neder and Rose, there were no other disputed facts or elements for the jury to decide. The judge’s instruction left the jury with no choice but to return a guilty verdict, resulting in the sort of error whose absence in Carella was critical to the Court’s decision to review for harmlessness....

An instruction that the only contested element has been satisfied cannot be reviewed for harmless error because the wrong entity — the judge rather than the jury — is responsible for rendering the verdict....

Instructions -- Harmless Error -- Misstatement of Affirmative Defense in Oral Rendition, but Proper in Written Submission
State v.Mark A. Peterson, 220 Wis. 2d 474, 584 N.W.2s 144 (Ct. App. 1998)
For Peterson: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding: Trial court's misstatement in oral instructions, with respect to affirmative defense of parental discipline privilege, § 939.45(5), was not prejudical where the written instructions submitted to the jury (as well as arguments by counsel) correctly defined the defense.

Lesser Included Offense

Instructions – Lesser Included Offense – First-Degree Reckless Endangerment as rel. to Attempted First-Degree Intentional Homicide
State v. Nathaniel L. Cox, 2007 WI App 38, PFR filed 3/16/07
For Cox: Joseph E. Redding
Issue/Holding:
¶8        Though our courts have never addressed the issue in a double jeopardy context, it is settled law that first-degree reckless endangerment under Wis. Stat. § 941.30(1) is a lesser included offense of attempted first-degree intentional homicide under Wis. Stat. § 940.01(1). State v. Weeks, 165 Wis. 2d 200, 205-06, 477 N.W.2d 642 (Ct. App. 1991); see also Hawthorne v. State, 99 Wis. 2d 673, 682, 299 N.W.2d 866 (1981) (holding the former analogous crime of endangering safety by conduct regardless of life a lesser included offense of the former analogous crime of attempted first-degree murder). That is, first-degree reckless endangerment does not require proof of any fact in addition to those required for attempted first-degree intentional homicide, see Wis. Stat. § 939.66(1), and a defendant cannot be punished under both statutes for the same act. Sec. 939.66; Hawthorne, 99 Wis. 2d at 680-82. [3] We thus agree with Cox and the circuit court that it was error to convict and sentence Cox under both statutes.
 [3] The State argues that reckless endangerment is not a lesser included offense of attempted homicide because reckless endangerment contains an element that attempted homicide does not: danger to another. Whatever the merits of this argument, we are bound by Hawthorne: “‘endangering safety’ [is] included in the element of attempted first-degree murder of ‘an unequivocal act which, except for the intervention of some extraneous force would have resulted in death of another.’” Hawthorne v. State, 99 Wis. 2d 673, 682, 299 N.W.2d 866 (1981) (footnotes omitted). The State also argues that, because Hawthorne and related cases were wrongly decided, it was not ineffective for Cox’s counsel to believe that reckless endangerment was not a lesser included offense of attempted homicide. Since we are directly addressing the underlying double jeopardy violation, we need not address the State’s argument.
Instructions -- Lesser Included, Post-Summation
State v. Vaughn Thurmond, 2004 WI App 49, motion for reconsideration denied 3/18/04
For Thurmond: Ann T. Bowe
Issue/Holding:
¶14. We find little guidance in Wisconsin law on the question raised on this appeal, i.e., can a judge instruct on lesser-included offenses after the jury has been deliberating? Several other jurisdictions have, however, addressed the issue. While it appears that some courts have adopted a per se rule establishing that giving a belated lesser-included instruction is prejudicial error, "[t]he weight of state authority holds that it would not be appropriate to adopt a per se rule which would declare the belated giving of any [lesser included offense] instruction to be prejudicial error."6 See United States v. Welbeck, 145 F.3d 493, 496 (2d Cir. 1998) (citation omitted). All courts have expressed some concern with this procedure. In examining the issue, we first adopt the view stated in State v. LaPierre, 2000 ME 119, ¶21, 754 A.2d 978, that "[a] reinstruction presenting for the first time choices for lesser included offenses not presented in the initial instructions, if proper at all, would be a rare event, only done in exceptional circumstances."

...

¶17. Summarizing, then, courts have reversed cases when post-summation lesser-included offense instructions were given: when it appeared likely that the jury saw the belated instructions as a court recommendation to convict; when the timing of the instructions makes the new instruction appear overly significant, upsetting the orderly process of the trial and upsetting the defendant's right to a fair trial; when the defendant's presentation of his case is harmed; and when circumstances suggest the verdict was driven by a stalled jury's desire to disband rather than complete a fair assessment of the evidence. With that backdrop in mind, we conclude that giving the lesser-included offense instructions was unfairly prejudicial here.

¶18. … Here, the trial court decided to give the new jury instructions after the jury had been deliberating for over fourteen hours and had expressed an inability to reach a verdict.

¶20. Additionally, the jury's relatively speedy return of its verdict suggests that not much time was spent examining the evidence in light of the new instructions. …

¶21. Other facts add to our concerns. The jury's communication that it felt deadlocked and "needed a new way to deliberate" points to the conclusion that the jury used the new offenses as a way of ending their deadlock rather than reaching a unanimous decision.


6   At oral argument, Thurmond contended that this court should adopt a per se rule that giving a belated lesser-included offense instruction is prejudicial error. We decline to do so.
Instructions -- Lesser Offense -- Jury Can't Base Guilt on Lesser-Offense Theory Without Specific Instruction
State v. Wyatt Daniel Henning, 2003 WI App 54, reversed on other grounds, 2004 WI 89
For Henning: Jack E. Schairer, SPD, Madison Appellate
Issue: Whether, on charges of bail jumping based on allegedly possessing controlled substances with intent to deliver while released on bond, the jury could be authorized to base bail-jumping guilt on a theory of simple possession, notwithstanding the parties’ stipulation and closing argument to base guilt solely on possession with intent and the absence of specific instruction on the lesser offense of simple possession.
Holding:
¶23. Admittedly, it is an open question whether Wisconsin law would even permit the introduction of a lesser-included offense after the jury has commenced its deliberations. But having persuaded the trial court to adopt such a procedure, the State should have perceived the necessity for such additional instructions and verdicts. This was especially so in this case where the parties had stipulated that Henning's fate on the bail jumping charges rested squarely on the jury's verdicts on the possession with intent to deliver charges. If the verdicts on those greater charges were to be supplanted by the lesser charges, the jury should have been provided verdicts as to those lesser charges. Because such verdicts were not provided, we have no documentation of the jury's supposed determination that Henning possessed controlled substances.

¶24. The prejudice to Henning is compounded by the fact that Henning's counsel correctly reminded the jury in his final argument (as did the State in its opening statement) that Henning was not charged with simple possession. Relying on the parties' stipulation, counsel therefore properly cautioned the jury that it could not premise any guilty verdict upon a finding of simple possession. However, when the trial court later authorized the jury to find Henning guilty of bail jumping based on simple possession, Henning's final argument on this point was thoroughly discredited and he was made to look the fool.

As the quote indicates, it’s an open question in Wisconsin as to whether a court can ever give a “belated” lesser offense instruction. ¶23 n. 9, citing U.S. v. Welbeck, 145 F.3d 493 (2nd Cir. 1998). That question isn’t reached here. Cf. State v. Isaac Hughes, 2001 WI App 239 (where jury returns verdict on both greater and lesser offenses, verdict on lesser is mere surplusage, and judgment entered on greater offense, ¶¶8-9). This is not a sufficiency of evidence case; it raises a jury instruction issue. ¶26. Reversal is based on a conjunction of several events, which probably makes it highly fact-specific, namely, the stipulation to base guilt or innocence solely on the greater offense, the absence of an instruction on the lesser, and the defense closing argument.

Note that the supreme court's subequent reversal was limited to the remedy -- whether the error required dismissal with prejudice or remand for new trial; the State expressly declined to challenge reversal of the conviction. 2004 WI 89 ¶1.

Instructions -- Lesser Offense -- Armed Robbery & Theft
State v. Keith Jones, 228 Wis.2d 593, 598 N.W.2d 259 (Ct. App. 1999)
For Jones: Edward J. Hunt
Issue/Holding: The trial court erroneously refused a requested lesser offense instruction of theft, on a charge of armed robbery, on the theory that the evidence supported a conviction for retail theft, § 943.50, which (unlike § 943.20 theft) isn't a lesser offense of armed robbery. The court of appeals holds: "There is no rule in Wisconsin that, just because a more specific crime could have been charged, a defendant loses his or her right to a lesser-included instruction on a more general offense which is supported by testimony in the record." Jones admitted the theft, establishing conviction on the lesser; and he disputed the threat of armed violence, which supported acquittal on the greater offense. The lesser option of theft therefore should have been submitted.
Instructions - Lesser Offense - Enticement - Attempt
State v. Gabriel DeRango, 229 Wis.2d 1, 599 N.W.2d 27 (Ct. App. 1999), affirmed on other grounds, State v. Derango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 83
For DeRango: Robert G. LeBell
Holding: Enticement is defined in terms of attempting to cause the act. Therefore, "it already contemplates a lesser included offense" of attempt, and no such instruction may be given.
Instructions -- Lesser Offense -- Refusal to Instruct on First Degree Reckless Homicide
State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02
For Barreau: Glenn C. Reynolds
Issue: Whether the first-degree intentional homicide defendant was entitled to an instruction on the lesser offense of first-degree reckless homicide.
Holding: Barreau must show a reasonable basis for negating intent to kill. The victim was killed by multiple blows to the head with a baseball bat. Barreau argues that the victim was still alive when Barreau (and his accomplice) left him; and that only two of the blows were sufficient to kill the victim. Neither theory prevails:
¶22. But even this does not get Barreau very far. Although a reasonable view of the evidence suggests that Barreau and Keeran believed Hansen was not yet dead when they fled the house, there is no evidence indicating that they believed Hansen would ultimately survive. Barreau seems to suggest that a defendant is entitled to a reckless homicide instruction any time he or she left the scene of the crime while the victim was still alive. Barreau points to no authority for such a proposition and we are unaware of any.
¶23. When someone beats another over the head at least ten times with a baseball bat and then stabs him in the neck with a knife, what could the expectation be, other than that the victim will die? If the assailant (either Barreau or Keeran or both) intended, as Barreau argues, to merely incapacitate Hansen without killing him, why strike him repeatedly on his skull? If only injury was intended, why stab the victim in the neck, even after he was clearly incapacitated? Barreau provides no explanation for these questions. Had Hansen been struck only once on his skull or repeatedly on a less vulnerable part of his body, we would agree that the assailant's conduct could be reasonably viewed as reckless. But this is not what happened.
Instructions -- Uncharged Greater Offense, as Explication of Charged Lesser
State v. Gary L. Gordon, 2002 WI App 53, reversed on other grounds, 2003 WI 69
For Gordon: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether the trial court improperly instructed the jury, at its request, on an uncharged greater offense.
Holding:
¶14. The trial court did not recite the jury instruction on first-degree recklessly endangering safety. Rather, it simply responded to the jury's specific and logical inquiry by explaining that the crime of first-degree recklessly endangering safety involves an additional element - the defendant must act with utter disregard for human life. Additionally, the trial court made it abundantly clear that Gordon was not charged with first-degree recklessly endangering safety, that the jurors were not to speculate or deliberate regarding the crime in the first-degree, and that the jury's sole task was to focus on the two elements of the second-degree charge.

¶15. We presume that the jury followed the trial court's cautionary instruction, see State v. Grande, 169 Wis. 2d 422, 436, 485 N.W.2d 282 (Ct. App. 1992) .... Thus, the trial court did not erroneously exercise its discretion in answering the jury's second question.

The court explicitly “cautions that instructing on an uncharged offense is appropriate only under very rare circumstances.” ¶15 n. 4. The issue does not appear to have been renewed in the supreme court, whose treatment of the case therefore leaves this holding intact.
Instructions -- Lesser Offense -- Simple Battery, § 940.19(1) (1989-90), on Charge of Intermediate Aggravated Battery, § 940.19(1m) (1989-90), PTAC -- Lack of Dispute as to Severity of Harm
(See State v. Glenn, below.)

Limiting Instructions

(Concurrence Only, Not Majority:) Limiting Instructions, Efficacy
State v. Edward Bannister, 2006 WI App 136, (AG’s PFR filed 6/22/06)
For Bannister: Kenneth P. Casey, UW Law School, Remington Center
Concurrence (Issue not Discussed or Reached by Majority):
¶22   It is no answer to say that the trial court told the jury that the lawyers’ arguments were “not evidence”— ...

¶23   We indulge the presumption that juries follow instructions because that advances the goals of finality. If we did not, we’d be trying the same case over and over again—the jurisprudential equivalent of a structure drawn by Maurits C. Escher. Yet, we must not let this general rule blind us to the rare situation when the trial court’s instructions do not cure the prejudice. As Learned Hand repeatedly warned, the efficacy of the instructions are more assumed than real. See United States v. Delli Paoli, 229 F.2d 319, 321 (2d Cir. 1956) (“Possibly it would be extreme to say that nobody can ever so far control his reasoning that he will not in some measure base his conclusion upon a part of the relevant evidence before him, which he has been told to disregard; but at least it is true that relatively few persons have any such power, involving as it does a violence to all our habitual ways of thinking.”), aff’d, 352 U.S. 232; Nash v. United States, 54 F.2d 1006, 1007 (2d Cir. 1932) (Instruction to jury to ignore prejudicial evidence often requires them to perform “a mental gymnastic which is beyond, not only their powers, but anybody’s else.”), cert. denied, 285 U.S. 556. ...


Omitted / Presumed Issues

Instructions -- Omitted Element -- "Fact-Law Distinction"
See summary of State v. Thomas Scott Bailey Smith, Sr., 2005 WI 104, here.
Omitted Issues – Stalking: Submission to Jury of Prior Conviction for “Violence” Despite Stipulation
State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42
For Warbelton: Paul G. Lazotte, SPD, Madison Appellate
Issue/Holding: On a trial for stalking, where one of the elements is prior conviction for “violent crime,” the defendant may blunt prejudicial impact of proof of the prior by stipulating to the existence of the conviction for a violent crime (thus precluding proof of its details); but may not bar altogether submission to the jury of the stipulation:
¶52      In McAllister, the court of appeals addressed the felon in possession of a firearm statute, Wis. Stat. § 941.29, in which one of the elements is a prior conviction of a felony. The court reasoned that evidence offered to prove the element is always relevant. McAllister, 153 Wis.  2d at 529. However, the statute required proof only of the fact of a prior felony conviction. The type of felony conviction and narrative details regarding the felony conviction were not relevant to prove the felon in possession of a firearm charge. Id.

¶53      … When the defendant agrees to a sanitized stipulation admitting the prior conviction, there is no need for further proof relating to the nature of the conviction.

¶54      Here, Warbelton offered to stipulate to the fact that he had a prior conviction for a violent crime. The State agreed to the stipulation, and the court determined that evidence about the nature of the prior conviction would not be before the jury. Although Warbelton's 1995 judgment of conviction was entered into evidence, it was not published to the jury. The jury was told only that Warbelton had been convicted of a violent crime, and that the stipulation was conclusive proof. This procedure was proper under McAllister and Old Chief.

That leaves the little matter of State v. Alexander, 214 Wis. 2d 628, 571 N.W.2d 662 (1997), which holds that on OWI trial, the existence of priors may be stipulated out of the jury’s sight and sound completely:
¶46      Despite the parallels between Alexander and this case, we decline to extend Alexander's holding to the stalking statute. Alexander is limited to prosecutions for driving while under the influence of an intoxicant or with a prohibited alcohol concentration. In these unique cases, the risk of unfair prejudice is extremely high, given the likelihood that jurors will make prohibited inferences based on the fact of multiple prior convictions, suspensions, or revocations. 

¶48      These likely inferences are at the heart of Wis. Stat. § 904.04, [19] the rule that prohibits a verdict based not on proof of the charged offense, but rather on the defendant's propensity to commit bad acts. In contrast, the element of the stalking statute that requires proof of a prior violent crime does not pose equivalent risks. Here, the jury is not likely to infer that because the defendant was convicted of a prior violent crime, it was a stalking offense. The prior offense could be one of a number of violent offenses. Additionally, the statute does not require multiple prior offenses, and therefore does not suggest a pattern of behavior. Finally, because the element does not imply a particular habit, jurors are unlikely to return a guilty verdict despite insufficient evidence of the crime charged.

But: a few paragraphs earlier, the court canvassed “the legislative history of stalking statutes in Wisconsin and nationally,” ¶34, stressing widespread recognition that stalkers often commit increasingly … you guessed it, violent acts, ¶36. Nope, conviction of a prior violent crime, where there’s a general understanding of stalkers’ tendency toward escalating violence, would mean little if anything to the jury. We are left, then, with Alexander as sui generis; better than nothing, given that it could have been overruled.
Instructions -- Omitted Element
State v. Scott R. Jensen, 2007 WI App 256; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31
For Jensen: Robert H. Friebert, Matthew W. O’Neill
Issue/Holding: The instructions created a mandatory conclusive presumption that relieved the State of its burden of proving intent to obtain dishonest advantage, ¶¶ 11-27. Same discussion as in State v. Sherry L. Schultz, 2007 WI App 257.
Jury Instructions – Conclusive Presumptions – Generally
State v. Sherry L. Schultz, 2007 WI App 257; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31
For Schultz: Stephen L. Morgan, Jennifer M. Krueger
Issue/Holding:
¶9        In State v. Kuntz, 160 Wis.  2d 722, 736-37, 467 N.W.2d 531 (1991), the supreme court explained that:
A mandatory presumption instructs the jury that it must find the elemental fact if the state proves certain predicate facts.  A mandatory presumption that is irrebutable is conclusive.  Thus, a mandatory conclusive presumption relieves the state of its burden of persuasion by removing the presumed element from the case entirely if the state proves the predicate facts. 
(Citations omitted.)  Wisconsin Stat. § 903.03(2) limits the circumstances under which a judge may direct a jury to find a presumed fact against a defendant.  In the event that the judge gives such an instruction, § 903.03(3) requires that
the judge shall give an instruction that the law declares that the jury may regard the basic facts as sufficient evidence of the presumed fact but does not require it to do so.  In addition, if the presumed fact establishes guilt or is an element of the offense or negatives a defense, the judge shall instruct the jury that its existence must, on all the evidence, be proved beyond a reasonable doubt.
Jury Instructions – Conclusive Presumptions – Misconduct in Public Office, § 946.12(3), Elements of Duty and Intent
State v. Sherry L. Schultz, 2007 WI App 257; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31
For Schultz: Stephen L. Morgan, Jennifer M. Krueger
Issue/Holding: Jury instructions on the elements of duty and intent under § 946.12(3) created mandatory conclusive presumptions:
¶10       Schultz contends that the following sentences in the jury instruction given by the trial court operated as mandatory conclusive presumptions on the issues of intent and duty: “The use of a state resource to promote a candidate in a political campaign or to raise money for a candidate provides to that candidate a dishonest advantage” (establishing the intent element); [3] and “[i]t is a state employee’s duty not to use, or direct the use of, state resources for political campaigns….  Political activity includes any of the following:  Campaign fundraising, the preparation and maintenance of campaign finance reports, and candidate recruitment” (establishing that Schultz acted inconsistently with her duties). [4]  Thus, Schultz contends that the jury instruction directed the jury to presume the elemental facts that Schultz acted with intent to obtain a dishonest advantage for herself or another and inconsistently with the duties of her office upon the predicate fact that she used state resources for campaign purposes. 

¶11      … We … conclude that the jury instruction contained mandatory conclusive presumptions as to the elements of intent and acting inconsistently with official duties, and thus violated Wis. Stat. § 903.03(3) because it did not contain the limiting language set forth in sub. (3).

¶20      We also disagree with the State’s assertion that the jury instruction left the jury free to reach its own finding as to Schultz’s intent upon a finding that Schultz used state resources for campaign purposes.  The court’s jury instruction only required that the jury find that Schultz used state resources “to promote a candidate in a political campaign or to raise money for a candidate” for it to find that Schultz exercised her discretionary power with intent to obtain a dishonest advantage for herself or another.  Stated differently, this instruction directs the jury that it must find that Schultz exercised her discretionary authority with the purpose to obtain a dishonest advantage (the elemental fact) if the State proves that Schultz used state resources for political campaign purposes (the predicate fact).  This instruction relieves the State of its burden of proving beyond a reasonable doubt that Schultz exercised her discretionary power with the intent of obtaining a dishonest advantage for herself or others, requiring only that the State prove the predicate fact of Schultz using state resources for campaign purposes.  Thus, the jury instruction contained a mandatory conclusive presumption on the element of intent.

The prior appeal established that directing staff to engage in a political campaign with state resources violated the statute, but the court now says that this principle merely meant that the statute wasn’t unconstitutionally vague: “In other words, we said that the defendants could be convicted because the statute apprised a reasonable person that the conduct, as alleged in the complaint, neared proscribed conduct,” ¶13. Directing a verdict on the facts is significantly different, id. This discussion is not, alone, particularly convincing because it merely raises the riddle of the fact-law distinction (see discussion, here; put simply, the court instructs on the law, the jury finds the facts – but sometimes the distinction is muddied). The decision goes on, though, to find support in State v. Dyess, 124 Wis.  2d 525, 370 N.W.2d 222 (1985):
¶17      Here, as in Dyess, the jury instruction precluded the jury from reaching its own decision on a finding essential to a conviction.  In Dyess, the instruction directed the jury to find negligence on a finding of speeding.  Here, the instruction directed the jury to find intent on a finding of use of state resources for campaign purposes.  We fail to see a distinction. 

¶18      The State, however, argues that only directed factual findings are impermissible, while directed legal findings are proper.  The Dyess court rejected this argument. …

That’s plain enough, if nonetheless still involving a certain amount of question-begging – especially in the court’s stress that the challenged instructional language was not a correct statement of the law, ¶19; but that very incorrectness is because of the conclusive presumption created by the language, which makes the court’s “explanation” circular. The court takes pains to ground its holding in the purely statutory rationale of § 903.03 rather than constitutional analysis, ¶1 n. 2. It makes sense, then, to see the holding as a construction of § 903.03 as simply not supporting a distinction between fact and law with regard to instructional presumption. Some of this becomes clearer in the court’s subsequent directive—the jury must be instructed on the substantive law, but not that certain facts satisfy that definition (¶22):
¶23      Here, the trial court did not merely define Shultz’s duty and then submit to the jury the question of whether Schultz engaged in conduct contrary to that duty, as the State asserts.  See Schwarze, 120 Wis. 2d at 456 (stating that “an employee has a duty to disclose shortages of money to his or her supervisor” as a matter of law, and thus the jury instruction that such a duty existed was proper).  Instead, Schultz’s jury instruction stated that certain conduct was inconsistent with Schultz’s duties.  Even accepting the State’s proposition that the court’s role was to define Schultz’s duty for the jury,[6] whether Schultz engaged in alleged conduct and whether that conduct was inconsistent with Schultz’s duties were questions for the jury.  Because the jury instruction required the jury to find that the element of performing acts inconsistent with the duties of one’s office was met upon a finding that Schultz engaged in campaign activity on state time, the instruction was a mandatory conclusive presumption.
 [6]   … (O)ur conclusion that the jury instruction on Schultz’s duties did not merely state what Schultz’s duties were, but rather stated that certain actions were inconsistent with her duties, is dispositive.
Instructions -- Omitted Element
State v. William E. Draughon III, 2005 WI App 162, (AG’s) PFR filed
For Draughton: Stephen L. Miller
Issue/Holding: Draughon, a pastor, was concededly a “clergy” member within § 940.22(2); however, the instructions relieved the State of its burden of proof on the element of whether he performed “therapy” in this capacity, in that they told the jury that a member of the clergy is a “therapist,” without specifically requiring that Draughon in fact performed therapy:
¶13      Jury instructions that have the effect of relieving the State of its burden of proving beyond a reasonable doubt every element of the offense charged are unconstitutional under the Fifth and Sixth Amendments. State v. Harvey, 2002 WI 93, ¶23, 254 Wis. 2d 442, 647 N.W.2d 189. The Fifth Amendment’s due process guarantee protects “the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id., ¶19 (citations omitted). The Sixth Amendment right of trial by jury in criminal cases includes the right to have the jury, rather than the judge, reach the requisite finding of guilt or innocence. See State v. Peete, 185  Wis.  2d 4, 19, 517 N.W.2d 149 (1994) (“Where the finder of fact is a jury, proof of all essential elements must be tendered to the jury.”).

¶14      … Here, the instruction given never directed the jury to make an independent, beyond-a-reasonable-doubt decision as to whether Draughon performed or purported to perform psychotherapy.  Because this finding was a required element of the charge, its omission is constitutional error. See Harvey, 254 Wis. 2d 442, ¶33.

Compare, Medley v. Runnels, 9th Cir No. 05-55295, 11/1/07 (instructing jury that flare gun is firearm unconstitutionally removed element).
Instructions -- Harmless Error -- Mandatory Conclusive Presumption
State v. Leonard J. Harvey, 2002 WI 93, affirming 2002 WI App 59, 242 Wis. 2d 189, 625 N.W.2d 892
For Harvey: Margaret A. Maroney, Steven P. Weiss, SPD, Madison Appellate
Issue: Whether the trial court properly instructed the jury to accept as true the judicially-noticed fact that the place defendant allegedly was near was a city park (which operated as a penalty enhancer).
Holding: The fifth amendment requires proof beyond reasonable doubt of every element and the sixth amendment right to trial by jury includes the right to have the jury rather than judge determine guilt -- these principles apply equally to penalty enhancers. ¶¶19-21. Although § 902.01(7) mandates that a trial judge instruct the jury to accept as true any judicially noticed facts, the trial court's compliance with that provision "had the same effect as a mandatory conclusive presumption on an element of the offense, which is unconstitutional[.]" ¶29.
¶33. Here, judicial notice--or, more particularly, the jury instruction directing the jury to accept the judicially-noticed fact as true--was applied to an element of the enhanced offense. This had the effect of not merely undermining but eliminating the jury's opportunity to reach an independent, beyond-a-reasonable-doubt decision on that element, and was therefore constitutional error. The incontestability of Penn Park's status as a city park goes to whether the error was harmless, not whether there was constitutional instructional error in the first place.
Instructions -- Stipulation to Proof of Elements -- Defendant's Personal Assent Required
State v. Kelley L. Hauk, 2002 WI App 226
(See State v. Hauk, below.)
Instructions -- Conclusive Proof of Factual Issue
State v. Gary L. Gordon, 2002 WI App 53, reversed on other grounds, 2003 WI 69
For Gordon: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether the trial court, on a charge of violating a domestic injunction which included an element of knowing violation, properly instructed the jury to “accept as conclusively proven that that order was served on the defendant in person.”
Holding: The defendant has the right to jury determination of all elements, therefore, “by directing the jury to accept as conclusively proven that Gordon was served with the order, the trial court erroneously removed a factual issue from the jury's consideration.” ¶¶44-45.
Though the supreme court subequently reversed, this particular issue was not included on review and is thus not affected by the reversal. 2003 WI 69 ¶19 n. 4. Nonetheless, the court did make it clear that an erroneous, conclusive presumption instruction is subject to harmless error analysis, id., ¶40.
Instructions – Presumption of Intoxication from Test Result, § 885.235(3) (2001-02)
State v. Peter A. Fonte, 2005 WI 77, reversing unpublished decision
For Fonte: Martha A. Askins, SPD, Madison Appellate
Issue/Holding: Expert testimony as to the effect of delay in administering test was sufficient to support jury instruction allowing jury to find operating under the influence from mere fact of .10% blood alcohol concentration, ¶¶14-18.
Instructions -- Conclusive Proof of Element, on Stipulation
State v. Charles J. Benoit, 229 Wis.2d 630, 600 N.W.2d 193 (Ct. App. 1999)
For Benoit: Meredith J. Ross, LAIP
Holding: Benoit stipulated to an element of burglary (nonconsent); the jury was instructed to accept any stipulation as conclusively proven, but was also instructed that guilt required finding nonconsent beyond a reasonable doubt. Benoit argues on appeal that his right to jury trial was violated because Benoit didn't waive his right to jury determination of the element. The court of appeals rejects the argument. This case is distinguishable from prior cases, such as State v. Villareal, 153 Wis. 2d 523, 450 N.W.2d 519 (Ct. App. 1989) and State v. Wallerman, 203 Wis. 2d 158, 552 N.W.2d 158 (Ct. App. 1996). Unlike Villareal's, Benoit's jury was instructed on all the elements; and the Wallerman procedure is limited to misconduct evidence. "In sum, we conclude that neither Kemp, Villarreal nor Wallerman provides special protections for a defendant seeking to stipulate to an element of a crime where (1) the jury is instructed on the element and (2) the court does not resolve the issue on its own. Because these conditions were met in this case, Benoit's argument must fail."

Particular Issues

Instructions – Stalking, § 940.32(3)(b) – “Course of Conduct” Element
State v. Michael A. Sveum, 2009 WI App 81, PFR filed 5/28/09
For Sveum: Robert J. Kaiser, Jr.
Issue/Holding:
¶57      The parties agree that the jury instruction on one element of stalking, under Wis. Stat. § 940.32(3)(b), was partially incorrect. As to the “course of conduct” element, the jury was instructed that the acts constituting a “course of conduct” are limited to:
1)         “maintaining visual or physical proximity to Jamie Johnson,” or

2)         “contacting Jamie Johnson by telephone or causing Jamie Johnson’s telephone or any other person’s telephone to ring repeatedly or continuously regardless of whether a conversation ensues,” or

3)         “causing any person to engage in either of the acts described [above].”

The causing-any-person part of this instruction was incorrect because of its reference to the two acts described in items 1) and 2). The “causing any person” alternative did not, at the relevant time, include causing these two acts. See § 940.32(1)(a) (2001-02). Thus, the jury was erroneously told that the “course of conduct” element could be met if Sveum caused his sister Renee to engage in either of these acts. [10]

¶58      Sveum correctly argues that this type of instructional error was cause for reversal in United States Supreme Court cases as recent as Boyde v. California, 494 U.S. 370 (1990). Since Boyde, however, the Court has concluded that harmless error analysis applies to such error. Hedgpeth v. Pulido, 129 S. Ct. 530, 532 (2008). We agree with the State that the error here was harmless.

The court deems the error harmless: not only did the evidence indisputably show that Sveum satisfied the misdefined element, his theory of defense took as given its proof and focused on other, disputed elements, ¶60.
Instructions – Particular Issues: Obstructing, § 946.41 – “Lawful Authority”
State v. Kelly R. Ferguson, 2009 WI 50, reversing unpublished opinion
For Ferguson: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶31      Because "lawful authority" is an element of obstruction under Wis. Stat. § 946.41(1), if the jury was not properly instructed on the meaning of "lawful authority," given the facts presented to the jury, the circuit court erred. See Harvey, 254 Wis. 2d 442, ¶23 ("[J]ury instructions that have the effect of relieving the State of its burden of proving beyond a reasonable doubt every element of the offense charged are unconstitutional under the Fifth and Sixth Amendments.").
Instructions - Particular Issues: No Duty to Clarify Elemental Meaning of “Materially Impaired”
State v. Jonathan J. Hubbard, 2008 WI 92, reversing 2007 WI App 240
For Hubbard: Steven W. Zaleski
Issue: Whether, upon jury request for clarification of “materially impaired” under the instructions for injury by intoxicated use of a vehicle, § 940.25(1)(a), the trial court properly responded that the should “give all words not otherwise defined in the jury instructions their ordinary meaning.”
Holding:
¶57      The circuit court had discretion to determine the necessity for, extent of, and form of reinstruction of the jury when responding to its request for clarification. Hareng, 90 Wis. 2d at 166 (citations omitted). Judge Wolfgram could have exercised his discretion by instructing the jury to re-read the jury instructions in their possession in light of the jury's request for a definition of "materially" impaired. "[A] court is not obligated to provide a jury with information solely because the jury believes it is important to its decision." State v. Lombard, 2004 WI App 52, ¶20, 271 Wis.  2d 529, 678 N.W.2d 338. However, once Judge Wolfgram correctly determined that "materially impaired" was not defined by "the Waalen language," he did not erroneously exercise his discretion by responding that the jury should give undefined words in the jury instructions their ordinary meaning. "If the overall meaning communicated by the instructions was a correct statement of the law, no grounds for reversal exist." Fischer, 168 Wis. 2d at 850 (citations omitted).

¶58      We hold that the court of appeals erred when it determined that this court's decision in Waalen gave the statutory term "materially impaired" a "peculiar meaning in the context of criminal charges," Hubbard, 306 Wis. 2d 356, ¶12, and that the jury should have been instructed accordingly. Id., ¶17. Thus, the circuit court did not erroneously exercise its discretion when it responded to the jury's request for clarification by indicating that the jury should "give all words not otherwise defined in the jury instructions their ordinary meaning." This succinct answer may not always suffice, but it was correct on the facts presented.

As the Chief Justice points out in concurrence (¶74), Waalen “made clear that the meaning of ‘materially’ for purposes of Wis. Stat. § 939.22(42) is less demanding of the prosecution than the term ‘substantially’ which constitutes the ordinary dictionary meaning of ‘materially.’” The net result, as the Chief then points out, is that the challenged instruction made it harder than necessary for the State to obtain a conviction.
Instructions -- Particular Issues: Causation
State v. Ronald L. Wille, 2007 WI App 27, PFR filed 2/28/07
For Wille: Jerome A. Maeder, Benjamin Welch
Issue/Holding:
¶24   Wille claims the trial court erred in instructing jurors that, to find Wille guilty of the charged crime, Meshak’s consumption of alcohol provided by Wille was required to be “a” substantial factor in causing Meshak’s death, instead of “the” substantial factor, as Wille requested. Alternatively, he contends the court should have also instructed jurors that, to be “a substantial factor,” the death had to be “a natural and probable consequence” of Wille’s conduct. [6] We are not persuaded that the trial court erred in instructing jurors that Wille could be found guilty if Meshak’s consumption of alcohol provided by Wille was “a substantial factor” in causing Meshak’s death, or that it erroneously exercised its discretion by refusing to insert the additional language Wille requested.

¶26   … (T)he trial court correctly instructed jurors that Wis. Stat. § 125.075(1) requires a showing that Meshak’s consumption of the provided alcohol needed to be “a substantial factor in causing [Meshak’s] death.”

¶27   We further conclude that the court did not err in refusing to add to the instruction that Meshak’s death must be shown to have been “the natural and probable consequence of the accused’s conduct,” which is the language Wille requested the trial court to insert. As the supreme court explained in Serebin, the phrase “a substantial factor” is the equivalent of “the natural and probable consequence of the accused’s conduct.” Serebin, 119 Wis.  2d at 849. We agree with the State that it is not an erroneous exercise of discretion for a trial court to decline to provide jurors with alternative language that communicates the same concept as other language already included in the instruction.

Instructions -- Particular Issues: Defense of Mistake, not Available to Refute “Reckless” Conduct
State v. Ray A. Hemphill, 2006 WI App 185, PFR filed 9/14/06
For Hemphill: Timothy A. Provis
Issue/Holding: Because physical abuse of a child by recklessly causing great bodily harm doesn’t require any criminal intent, the defendant is not entitled to a defense of “mistake,” § 939.24(2), ¶¶9-13.
Instructions -- Particular Issues: Defining “Great Bodily Harm,” § 939.22(14)
State v. Mahlik D. Ellington, 2005 WI App 243
For Ellington: Andrea Taylor Cornwall
Issue/Holding: The following instruction is sufficient: “Great bodily harm means serious bodily injury.  You, the jury, are to alone to determine whether the bodily injury in your judgment is serious.” ( La Barge v. State, 74 Wis. 2d 327, 333, 246 N.W.2d 794, 797 (1976) and Cheatham v. State, 85 Wis. 2d 112, 119–124, 270 N.W.2d 194, 198–200 (1978) followed, to effect that “serious bodily injury” is phrase of “ordinary significance” such that embellishment is unnecessary.) In addition, although various examples of serious injury are listed in the statute, the legislature did not intend that they restrict the meaning of that phrase. ¶¶6-8.
Instructions -- Particular Issues: Coercion -- § 939.46(1)
State v. Jeffrey A. Keeran, 2004 WI App 4, PFR filed 1/5/04
For Keeran: Joseph L. Sommers
Issue/Holding:
¶5 … The coercion defense is limited to the "most severe form of inducement." State v. Amundson, 69 Wis. 2d 554, 568, 230 N.W.2d 775 (1975). It requires a finding "under the objective-reasonable man test, with regard to the reasonableness of the actor's beliefs that he is threatened with immediate death or great bodily harm with no possible escape other than the commission of a criminal act." Id.

¶6. A defendant seeking a coercion defense instruction must meet the initial burden of producing evidence to support such an instruction. …

¶7. Keeran argues that he was entitled to a coercion defense instruction because a reasonable construction of the evidence supports a finding that threats made by Barreau reasonably caused Keeran to believe that participating in the crimes (including striking Robert Hansen with a bat as Hansen lay on the floor) was "the only means of preventing imminent death or great bodily harm" to Keeran. The trial court gave several reasons why Keeran was not entitled to a coercion defense instruction. We need not address all of these reasons because we agree with the trial court, and the State, that Keeran has failed to meet his initial burden of producing sufficient evidence to support a finding that he had no "means of preventing imminent death or great bodily harm" to himself, except by participating in the crimes. See Wis. Stat. § 939.46(1). In the words of the Amundson court, Keeran failed to present evidence showing that he reasonably believed there was "no possible escape other than the commission of a criminal act." Amundson, 69 Wis. 2d at 568.

(Keeran did not, in particular, explain why he didn’t call the police or run away despite opportunity to do either or both, ¶12, nor why he could not have used his weapon – a bat – “to fend off Barreau,” ¶13. Nor did Keeran “take the most obvious step to avoid hitting Hansen: he did not tell Barreau that he did not want to hit Hansen …,” but instead “simply complied with Barreau’s directive,” ¶14.)
Although there was evidence that Keeran was threatened with harm, more is required:
¶15. Keeran testified that he was afraid of Barreau and, viewing the evidence in a light most favorable to Keeran, the evidence supports a finding that Keeran reasonably believed that Barreau would attempt to harm Keeran if Keeran did not comply with Barreau's orders. But that only suggests that Keeran's safest course was to comply with Barreau's orders; it does not mean that Keeran's only course was to comply with Barreau's orders. The coercion defense is not a license to take the safest course. Further, viewing the evidence in a light most favorable to Keeran, the evidence supports a finding that Keeran reasonably believed that if he successfully managed to separate himself from Barreau, Barreau would attempt to hunt Keeran down and harm him later. But such a finding would not support a coercion defense because the defense requires the prevention of "imminent" death or great bodily harm.
Instructions -- Particular Issues: Names, Common Law Right to Change
State v. Ronald A. Hansford, 219 Wis.2d 226, 580 N.W.2d 171 (1998), on certification.
For Hansford: Suzanne Hagopian, SPD, Madison Appellate.
Issue: "(W)hether the circuit court committed reversible error in denying the Defendant's request for a jury instruction on the common law right to change one's name." ¶27.
Holding: Wisconsin common law recognizes that it is permissible to change one's name "through consistent and continuous use, as long as the change is not effected for a fraudulent purpose." ¶29.
Go To Brief
Instructions -- Particular Issues: "Threatening" Judge, § 940.203(2)
State v. Murle E. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762, reversing State v. Perkins, 2000 WI App 137, 237 Wis. 2d 313, 614 N.W.2d 25
For Perkins: William E. Schmaal, SPD, Madison Appellate
Issue: Whether the jury instruction on the crime of threatening a judge (Wis JI-Crim 1240) adequately described the "threat" element, namely: adequately explaining the difference between a "true threat" and prtotected free speech.
Holding: Instructional failure to define the threat element left the jury without guidance to distinguish (criminal) "true threats" from constitutionally protected speech. ¶37. Neither counsel's arguments nor defendant's testimony could make up for this omission: "(t)he validity of the jury's verdict depends on the completeness of the instructions." ¶¶40-42. And, because the common defintion of "threat" is much broader than the criminal definition, "a reasonable likelihood exists that the jury interpreted and applied the instruction to the detriment of the defendant's constitutional right to freedom of speech." ¶43.
Go To COA Brief
Instructions Particular Issues: Falsus in Uno
State v. Tito J. Long, 2002 WI App 114, PFR filed 5/23/02
For Long: Ann T. Bowe
Issue/Holding: Falsus in Uno instructions are disfavored, and trial court's refusal to give such an instruction is upheld. ¶¶39-43.
Instructions -- Particular Issues: Sexual Assault of Child: Intentional Act by Defendant
State v. Abby J. Olson, 2000 WI App 158, 238 Wis.2d 74, 616 N.W.2d 144
For Olson: Steven L. Miller
Issue: Whether the female defendant, charged with sexual assault of boys, was entitled to an instruction that the intercourse be undertaken at her behest.
Holding: "[I]mplicit in the sexual-intercourse-with-a-child statute [is] a requirement that the intercourse must at least have occurred, in the language of Wis. Stat. § 948.01(6) and Wis JI-Criminal 2104 and 2101b, 'upon [the defendant's] instruction' before a conviction may be had." ¶12. (Note: There was no dispute that intercourse occurred. The theory of defense was that the defendant had been raped by the boys. Without this addition to the instruction, the jury would have no choice but to assign guilt, even if it believed that she had indeed been raped. ¶8. But it simply isn't clear that the holding is limited to these sorts of facts: "All we hold in this case is that the act or acts which bring about the sexual intercourse must be, again in the words of the statute, undertaken 'upon the defendant's instruction.'" ¶13.)
Instructions -- Particular Issues: "Time of Commission," Wis JI No. 255
State v. Richard Dodson, 219 Wis.2d 65, 580 N.W.2d 181 (1998), unpublished decision below
For Dodson: Michael J. Backes
Issue: Whether the trial court erred in giving a "time of commission" instruction, where the charging document was imprecise as to date of offense.
Holding: "The pattern instruction, No. 255, allows conviction on proof the offense was committed near the date alleged. The trial court gave a modified instruction, eschewing proof the offenses were committed "between the precise dates alleged," but permitting conviction on proof of commission "on a date during the time period alleged[.]" The court notes that the pattern instruction may be problematic when an alibi defense is presented, but since none was presented here, the pattern instruction could have been submitted. But the instruction actually submitted "is internally inconsistent and contradictory." Since the jury could not possibly "abide by" this instruction, "the instruction undermines any confidence in the jury's verdict."
Instructions -- Particular Issues: Immunized (Defense) Witness
State v. Earl L. Miller, 231 Wis.2d 447, 605 N.W.2d 567 (Ct. App. 1999)
For Miller: Eduardo M. Borda
Issue: Whether the trial court should have given an immunized-witness instruction, Wis JI-Crim 246, in relation to a defense witness.
Holding: "[W]here an immunized witness testifies favorably for the defense, an immunized witness instruction is not required." ¶32.
Instructions -- Particular Issues: Obscenity
State v. Tee & Bee, Inc., 229 Wis. 2d 446, 600 N.W.2d 230 (Ct. App. 1999)
For Tee & Bee: Jeff Scott Olson
Issue/Holding:Instructions that drew the line at "the prevailing accepted standards" rather than "the limits of the community's tolerance" misstated the law with respect to obscenity. The trial court further erred in refusing to instructionally define the relevant community as the state of Wisconsin. These errors were aggravated by the prosecutor's closing argument (that the standard is not what is tolerated; and that "community" meant a smaller area than state of Wisconsin) and were prejudicial.
Instructions -- Particular Issues: Recklessness - "Awareness"
State v. Audrey A. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999), habeas denied, Edmunds v. Deppisch, 7th Cir No. 02-1896, 12/18/02
For Edmunds: Dean A. Strang
Issue/Holding: The court upholds an instruction that Edmunds must have been "aware that her conduct created an unreasonable and substantial risk of death or great bodily harm" (against an argument that awareness of risk "must coincide with the time at which the acts which created the risk occurred").

PTAC

Instructions -- PTAC -- "Natural and Probable Consequences" -- Evidentiary Support
State v. Bryan Hoover, 2003 WI App 116, PFR filed 6/26/03
For Hoover: Glenn C. Cushing, SPD, Madison Appellate
Issue/Holding: Failure to instruct the jury, under Wis JI-Crim No, 406 ptac, as to the intended crime that could be used to support “natural and probable consequence” liability was not prejudicial, if error at all, because “(t)he instruction for the charged crime was given properly as to the elements and the intended crime instruction was adequate to inform the jury.” ¶33. (And, U.S. v. Elizondo, 920 F.2d 1308, 1317 (7th Cir. 1990) followed: vicarious-liability instruction harmless where government – as here – relies on alternative theory of direct liability. ¶34. However, trial courts are cautioned to give a brief summary of the intended crime rather than completely excising it from JI 406. ¶33.)
Instructions -- PTAC -- "Natural and Probable Consequences" -- Evidentiary Support
State v. Jeffrey R. Groth, 2002 WI App 299, PFR filed 12/11/02
For Groth: Peter Koneazny, Randall E. Paulson, SPD, Milwaukee Appellate
On-Line Brief
Issue/Holding: The evidence supported an instruction assigning ptac liability if the jury found that the charged offense (second-degree reckless homicide while armed) was a "natural and probable consequences" of the intended crime (second-degree reckless endangering while armed). ¶¶12-15 (court stressing that recklessness common to both offenses; and: overwhelming evidence of Groth's intent to seek "armed retaliation"; Groth secured gun and handed it to direct actor after he disparaged Groth's willingness to fire it).
Instructions -- PTAC -- Lesser Offense -- Simple Battery, § 940.19(1) (1989-90), on Charge of Intermediate Aggravated Battery, § 940.19(1m) (1989-90) -- Lack of Dispute as to Severity of Harm
State v. Anthony M. Glenn, 199 Wis. 2d 575, 545 N.W.2d 230 (1996)
For Glenn: Wm. J. Tyroler, SPD, Milwaukee Appellate
Issue/Holding:
In the classic case of battery given as a lesser-included offense for intermediate aggravated battery, the question for the jury is whether the victim suffered great bodily harm or merely bodily harm. Here, however, the question of the degree of bodily harm is not at issue because it is undisputed that there was great bodily harm. Therefore, we hold that the trial court properly concluded that the lesser-included battery offense was not appropriate because the degree of harm does not support acquittal on the greater charge and conviction on the lesser charge. Wilson, 149 Wis. 2d at 898.

Glenn argues that while the resulting harm constituted great bodily harm, the jury could believe that his actions did not cause it. This argument ignores the fact that Glenn was charged as party to the crime of intermediate aggravated battery.

...

... Here, the issue is whether liability under § 939.05 extends to an unintended crime that develops from an intended crime. We agree with Glenn that this case is most analogous to those cases where the defendant is alleged to be guilty as party to a crime on the theory that he or she intentionally aided and abetted in a crime or conspired in the commission of a crime, of which the charged crime is a natural and probable consequence. See State v. Ivy, 119 Wis. 2d 591, 350 N.W.2d 622 (1984); State v. Asfoor, 75 Wis. 2d 411, 249 N.W.2d 529 (1977); State v. Cydzik, 60 Wis. 2d 683, 211 N.W.2d 421 (1973). In such cases this court has held that "one who intentionally aids and abets the commission of a crime is responsible not only for the intended crime, if it is in fact committed, but as well for other crimes which are committed as a natural and probable consequence of the intended criminal acts." Asfoor, 75 Wis. 2d at 430, citing Cydzik, 60 Wis. 2d at 696-98.

...

... Accordingly, we disagree with Glenn that the lesser-included battery offense constituted an appropriate substitute for the instruction suggested by this court in Ivy. Glenn was charged with party to the crime of intermediate aggravated battery. The choices for the jury were to acquit him of the charge if it found that the chase and jump into the lake was not a natural and probable consequence of the intended battery or to find him guilty as an aider and abettor or conspirator.

The court hitches party-to-a-crime liability and causation, and the offspring of this arranged marriage isn't pretty to behold. Glenn was among one group who had a fateful confrontation with another group along Milwaukee's lakefront. Naturally, the accounts vary, but under one view of the evidence Glenn's group struck Massaro (establishing Glenn's guilt for simple battery), and Massaro then fled down the pier, chased by some of that group but not Glenn; Massaro jumped into the lake in an effort to get away and drowned (hence the aggravated battery). It's obviously indisputable that Massaro suffered great bodily harm. But the question is whether Glenn caused that harm -- if not, then there's basis for his acquittal of aggravated and conviction for simple battery. That question turns (or, rather, should turn) on whether the chase down the pier and ultimate escalation of harm was reasonably foreseeable to Glenn: if not, then he couldn't be held accountable for causing the great harm.

Wisconsin caselaw pays lip service to the idea that reasonable foreseeability is generally a jury question. But the implementation of that principle generally leaves much to be desired, as the result in Glenn illustrates. (Tellingly, you have to go to a dissent, by the ever-astute Judge Posner, Perry v. McCaughtry, 308 F.3d 682 (7th Cir. 2002), for a forceful statement of this principle.) Glenn goes so far as to acknowledge, "The question of whether the act committed was the natural and probable consequence of the act encouraged is a factual question for the jury." It necessarily follows, as the court explicitly recognized, that there was a reasonable basis "to acquit him of the charge if it found that the chase and jump into the lake was not a natural and probable consequence of the intended battery[.]" The court simply does not explain convincingly why Glenn wasn't therefore entitled to the lesser instruction. The court does go on to say that the jury was was at least partially instructed on the reasonable-foreseeability theory. The idea might therefore be that the typical concern about not submitting a lesser offense instruction -- an all-or-nothing theory coerces a guilty verdict -- simply wasn't present. Perhaps; the court doesn't quite get around to spelling out its rationale. The only thing that is clear is that when PTAC and causation collide the likely result is great harm to the body of caselaw.

Good, concise discussion (albeit non-ptac related) in People v. Rideout, MI App No. 261233, 10/26/06 (intervening act may sever causal link).


Reinstruction

Reinstruction – No Duty to Clarify Elemental Meaning of “Materially Impaired,” Upon Jury Request
State v. Jonathan J. Hubbard, 2008 WI 92, reversing 2007 WI App 240
For Hubbard: Steven Zaleski
Issue/Holding: The trial court did not err in refusing to provide requested jury clarification of the meaning of the “materially impaired” element on a charge of injury by intoxicated use.
See summary of case, above.

Theory of Defense

Theory of Defense Instruction, Generally
State v. Christopher J. Lesik, 2010 WI App 12, PFR filed 1/7
For Lesik: Anthony Cotton
Issue/Holding:
¶1   A trial court has broad discretion in deciding to give a particular jury instruction. State v. Hemphill, 2006 WI App 185, ¶8, 296 Wis. 2d 198, 722 N.W.2d 393. However, the instruction given must “fully and fairly inform the jury of the rules of law applicable to the case and … assist the jury in making a reasonable analysis of the evidence.” State v. Coleman, 206 Wis.  2d 199, 212, 556 N.W.2d 701 (1996) (citation omitted). Further,
a criminal defendant is entitled to a jury instruction on a theory of defense if: (1) the defense relates to a legal theory of defense, as opposed to an interpretation of evidence; (2) the request is timely made; (3) the defense is not adequately covered by other instructions; and (4) the defense is supported by sufficient evidence.
Id. (citations omitted).
Theory of Defense Instruction, Sexual Assault of Child: Proper Medical Purpose
State v. Christopher J. Lesik, 2010 WI App 12, PFR filed 1/7
For Lesik: Anthony Cotton
Issue/Holding: The trial court’s amendment to the standard instructional definition of “sexual intercourse” of a child to exclude “an intrusion for a proper non-sexual non-sexual purpose, such as a medical examination or appropriate child care or treatment,” ¶5, “fully and completely conveyed Lesik’s theory of defense,” ¶17.
Instructions - Self-Defense - Victim Unarmed and Not Committing Unambiguously Violent Act at Time of Death
State v. Debra Ann Head, 2002 WI 99, reversing, 2000 WI App 275
(See summaries at Defenses -- Defense of Self, and scroll down)
Instructions -- Self-Defense (Imperfect), §. 940.01(2)(b) -- Evidentiary Support
State v. Shirley J. Peters, 2002 WI App 243
For Peters: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: Defendants seeking an instruction on unnecessary defensive force to a charge of 1st-degree intentional homicide must present "some" evidence of actual belief of imminent threat of death or great bodily harm, along with actual belief that the force used was necessary. ¶16. Peters presented some evidence of the requisite actual beliefs -- her deceased husband was known to keep guns within reach and had threatened her -- and she therefore meets this test.The facts closely parallel those of State v. Debra Ann Head, 2002 WI 99, decided after her trial.  A new trial is required in the interest of justice, § 752.35. ¶¶19-20. (Note: the defense requested, but was denied, an imperfect self-defense instruction, ¶10; the issue, in other words was properly preserved. Reversal is nonetheless grounded in an interest-of-justice theory, something ordinarily applied to unpreserved error, apparently because the trial court, not having benefit of Head, applied the wrong test in denying the instruction. ¶¶19-20.)
Instructions -- Self-Defense (Perfect), §. 940.01(2)(b) -- Evidentiary Support
State v. Shirley J. Peters, 2002 WI App 243
For Peters: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding:
¶21. ... In order to place perfect self-defense in issue a defendant need present only "some" evidence supporting the claim of self-defense measured against the objective reasonable threshold for perfect self-defense announced in Head. See id. at ¶125. Once the evidence places perfect self-defense in issue, the State bears the burden of disproving the defense beyond a reasonable doubt. See id. at ¶106.
...
¶24. ... (V)iewing the evidence in the light most favorable to Peters, a jury could conclude the State had not disproved the perfect self-defense theory beyond a reasonable doubt and that Peters reasonably believed she was preventing or terminating an unlawful interference with her person and reasonably believed the force she used was necessary to prevent imminent death or great bodily harm.
There was evidence that the deceased-husband: was psychologically and verbally abusive; kept guns within reach in the house; looked down the scope of a rifle at her the day before the shooting; pulled the phone cords out of the wall the morning of the shooting, and told her she wasn't going anywhere; and dropped his hand into an area where he kept a gun, just before she shot. ¶¶25-26. Certain problems with her version were just that, matters going to credibility and therefore for the jury to weigh. ¶¶27-28. (Given that Peters produced enough evidence to show an objectively reasonable belief in need for deadly force, if the evidence at retrial "is substantially similar," then "the trial court must give the perfect self-defense instruction." ¶29 n. 5, Head distinguished on this narrow point of precise mandate.)
Instructions -- Territorial Defense, § 939.03
State v. Shon D. Brown, 2003 WI App 34, PFR filed 2/3/03
For Brown: Robert T. Ruth
Issue/Holding: Whether defendant was entitled to an instruction on territorial defense, § 939.03, where the offense was partially committed out of the state.
Holding:
¶23. The question of whether or when a jury must be instructed on the State's burden to establish its territorial jurisdiction over a defendant for charged offenses appears to be one of first impression in Wisconsin. See Wis JI-Criminal 268. We conclude that a jury instruction on territorial jurisdiction is required only when a genuine dispute exists regarding the facts necessary to establish Wisconsin's territorial jurisdiction over a charged crime. Because no such dispute existed in this case, the trial court did not err in failing to instruct the jury on the jurisdictional issue....

¶25. There is no dispute that the State is obligated in all prosecutions to establish its territorial jurisdiction over a defendant for charged crimes. See Hotzel v. Simmons, 258 Wis. 234, 240, 45 N.W. 2d 683 (1951) ("It is elementary that a court may act only upon crimes committed within the territorial jurisdiction of the sovereignty seeking to try the offense."). The question is whether the determination that territorial jurisdiction over a defendant for charged crimes exists in Wisconsin is to be made by the court or a jury. We are satisfied that the proper answer to this question is that it depends on the circumstances in a given case. In its "Law Note" on territorial jurisdiction, the Criminal Jury Instruction Committee states its conclusion that if the jurisdiction issue depends upon contested issues of fact, those issues are for the jury to determine, using the beyond a reasonable doubt standard. If the charging document does not properly allege that the crime was committed within the territorial jurisdiction of the state of Wisconsin, the trial court should grant a motion to dismiss. If there is a dispute about jurisdiction that presents a purely legal question, that is, whether the law confers jurisdiction over [a defendant for a given crime based on] an undisputed factual situation, that question should be decided by the court. But if the charging document sufficiently alleges facts in support of jurisdiction and there is a dispute about those facts, the issue will be for the jury to decide. Wis JI-Criminal 268. ...

¶30. We conclude that it is not necessary for us to decide in this case whether something less than a "full element" of a crime may be a "constituent element" of the crime for purposes of Wis. Stat. § 939.03(1)(b), or if the statute requires that a "full element" take place within Wisconsin's borders. Rather, we conclude that the State is on firmer ground in claiming that Wisconsin's territorial jurisdiction over Brown's crimes was beyond factual dispute because his out-of-state acts were done "with intent that [they] cause in this state a consequence set forth in a section defining a crime." Wis. Stat. 939.03(1)(c).

(Analogy is made to State v. Inglin, 224 Wis. 2d 764, 592 N.W.2d 666 (Ct. App. 1999) (interference with child custody, where child's concealment took place out of state). Brown's crimes -- operating w/o owner's consent and theft -- were "intended to cause criminally proscribed consequences in Wisconsin." Oh? Well, for starters, Brown had permission to take the truck out of state, which the court finesses with this gem of a non-sequitur: "At whatever point Brown elected to depart from that mission, his operation became nonconsensual...." (Emphasis supplied.) OK, but the problem is that there was a dispute on that very point: Brown maintained that he abandoned the truck, and it’s a bit hard to see how abandonment can be equated with operation; Brown’s defense, indeed, was that he stopped operating the vehicle. So, there would seem to be a genuine question about just where (and how) the crime was committed. The court says that there's no factual dispute that Brown intended "criminally proscribed consequences in Wisconsin." However, that characterization is defensible only because the court upheld exclusion of his proffered testimony denying intent. See ¶¶16-20. Very convenient.) ¶¶
Instructions -- Theory of Defense -- Test
State v. Bernell Ross, 2003 WI App 27, PFR filed 2/21/03
For Ross: Andrew Mishlove
Issue/Holding:
¶23. Granting the request of an accused for a specific instruction is required where there is any foundation in the evidence for the giving of such instruction, even though the evidence may be weak, insufficient, inconsistent or of doubtful credibility. In determining whether the requested instruction is required, we must not weigh the evidence or look to the totality of the evidence; rather, we must view the evidence in the light most favorable to the accused. See State v. Giminskis, 2001 WI App 211, 8, 247 Wis. 2d 750, 634 N.W.2d 604. Whether the evidence, viewed in the light most favorable to Ross, supplies a sufficient basis to include the proposed instruction is a question of law, and will be reviewed independently. Id. at ¶11.
Instructions -- Theory of Defense -- General
State v. Shirley J. Peters, 2002 WI App 243
For Peters: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding:
¶27 n. 4. The "some" evidence standard is a relatively low threshold, in part because of the distinct functions of judge and jury. Walter Dickey, David Schultz & James Fullin, Jr., The Importance of Clarity in the Law of Homicide: The Wisconsin Revision, 1989 Wis. L. Rev. 1323, 1347. First, evaluating the weight and credibility of evidence is traditionally within the province of the jury. Id. Second, perfect self-defense has a significant objective component requiring the evaluation of the reasonableness of the defendant's belief or actions. See id. Such evaluations require the application of a community standard that also traditionally has been entrusted to the jury. Id.

¶28. The question before us, as it was by law before the trial court, is not what the "totality of the evidence" reveals but rather, whether a reasonable construction of the evidence viewed in the light most favorable to the defendant will support the defendant's theory. See State v. Mendoza, 80 Wis. 2d 122, 153, 258 N.W.2d 260 (1977). If the question is answered affirmatively, then it is for the jury, not for the trial court or this court, to determine whether to believe the defendant's version of the events. Id. at 153. Peters has met her burden under the "some" evidence standard and it is for the jury to decide whether to believe her version of the events.

Instructions -- Theory of Defense -- "Advice of Counsel," as Negating Willfulness
State v. Bernell Ross, 2003 WI App 27, PFR filed 2/21/03
For Ross: Andrew Mishlove
Issue/Holding:
¶24. To warrant an advice-of-counsel theory of defense instruction, both parties agree that Ross was required to show that: (1) before taking action, (2) he in good faith sought the advice of an attorney whom he considered competent, (3) for the purpose of securing advice on the lawfulness of his possible future conduct, (4) and made a full and accurate report to his attorney of all material facts which the defendant knew, and (5) then acted strictly in accordance with the advice of his attorney who had been given a full report. United States v. Cheek, 3 F.3d 1057, 1061 (7th Cir. 1993) (citation omitted). For two reasons, we reject this claim of error....

¶27. Here, under neither the securities fraud statutes nor WOCCA is the State required to prove that the accused acted with intent to defraud or with knowledge that the law was violated. All that the State is required to prove is that the accused acted intentionally in the sense that he or she was aware of the act that he or she was performing. See generally State v. Mueller, 201 Wis. 2d 121, 549 N.W.2d 455 (Ct. App. 1996). Because Ross's specific state of mind was not relevant to any of the elements of the crimes with which he had been charged, the advice-of-counsel theory of defense instruction would not have been applicable.

¶28. Second, the trial court concluded that the evidence did not warrant the instruction. The Cheek five-part test is couched in conjunctive, not disjunctive, terms. Ross had to present evidence, which when viewed in a light most favorable to him, demonstrated that he fulfilled all five requirements of the test. He claims that "[t]he record is replete with testimony upon which a jury could have found, if properly instructed, that [he] relied on the advice of counsel and, hence, did not willfully violate the law." We are not convinced.

Instructions -- Theory of Defense -- Entrapment
State v. James L. Schuman, 226 Wis.2d 398, 595 N.W.2d 86 (Ct. App. 1999)
For Schuman: Richard L. Kaiser
Issue/Holding: Trial court's failure to submit entrapment instruction, on charges of attempt and solicitation to commit 1st degree intentional homicide, held reversible error. Though defendant's "story stretches the imagination," "only slight evidence is needed to create a factual issue and get the defense to the jury."
Instructions -- Theory of Defense -- Venue
State v. Jesse H. Swinson, 2003 WI App 45, PFR filed 3/24/03
For Swinson: Pamela Pepper
Issue/Holding:
¶26. A specific instruction on venue needs to be given only when venue is contested. Wis JI-Criminal 267 n.1. Swinson did not request a specific instruction on venue; therefore, the trial court did not erroneously exercise its discretion in failing to give such an instruction. The real issue in controversy was fully tried; therefore, this case is not appropriate for discretionary reversal. See Wis. Stat. § 752.35. As already discussed, the State proved venue in Sheboygan county.

Unanimity

Unanimity – Sexual Assaults, Separate Counts, Failure to Tie Particular Act to Particular Count
State v. Christopher F. Becker, 2009 WI App 59, PFR filed 5/8/09
For Becker: Jeremy C. Perri, SPD, Milwaukee Appellate
Issue/Holding: Waived objection to jury instruction “which failed to tie a particular act of sexual contact to a particular count” on a 2-count information of sexual assault of a child, not prejudicial (State v. Marcum, 166 Wis. 2d 908, 480 N.W.2d 545 (Ct. App. 1992), distinguished):
¶22   … As noted earlier, the Marcum jury returned a combination of verdicts, two acquittals and one guilty, making it impossible to know if all twelve jurors agreed that Marcum committed the same act in the count where there was a guilty verdict. See id. at 920. …

¶23   Unlike the defendant in Marcum, Becker was not prejudiced by his counsel’s failure to make a timely objection to the jury instructions, and thus does not prevail on this claim. See id. at 924. Unlike the Marcum jury, the jury here did not return a combination of acquittal and guilty verdicts; rather, it convicted Becker on both counts in question, returning two verdicts of guilty. See id. at 920. This eliminates the risk that the jury was not unanimous and, thus, does not give rise to prejudice by offending the unanimous jury requirement. The unanimity of the jury is accurate even if the jurors, as a result of the trial court’s answer to their question, did not all agree on which act should be assigned to which count.

¶24   Moreover, the jury was explicitly told that “[e]ach Count charges a separate crime and you must consider each one separately.” We agree with the State that no reasonable juror could hear that instruction and conclude that he or she could predicate both guilty verdicts on the same act. Thus, when all the jurors agreed that Becker was guilty of both counts, they unanimously agreed beyond a reasonable doubt that he had committed both of the acts of sexual assault charged: the act of touching the victim’s vaginal area and the act of allowing or causing the victim to touch his penis. How each individual juror assigned the two acts between the two counts made no difference; for however each juror assigned them, each juror could not find Becker guilty of both counts without concluding beyond a reasonable doubt that Becker engaged in both acts charged.

One count involved touching the victim’s vagina, the other involved touching the defendant’s penis—the court stresses absence of “any suggestion that Becker touched the victim’s vaginal area two times,” ¶26, in other words, absence of any possibility the jury would have confused the necessary showing. (“Given the jury’s guilty verdicts on both counts, it is inconsequential as to which type of touching was tied to which count by the individual jurors because the jurors unanimously agreed that Becker was guilty beyond a reasonable doubt of both a sexual assault consisting of his touching the victim’s vaginal area and a sexual assault consisting of him allowing or causing the victim to touch his penis,” ¶27.)

The court does, though, recognize the potential for mischief and serves up some stern advice; cold comfort for Becker no doubt, but worth the next litigant’s close attention:

¶10   Before we proceed to our analysis, we make the following edifying clarifications. This entire issue could have been avoided if the State had not put it in play with its sloppy draftsmanship. In the complaint and information, the district attorney did not tie the specific act of Becker touching the victim’s vaginal area to a specific count; nor did he tie the specific act of Becker allowing or causing the victim to touch his penis to a separate, specific count. Where a defendant, such as Becker, is charged with multiple acts violating a criminal statute, the district attorney should tie a specific act to each count in the case. The complaint and/or information should then specify in each count the specific act to which it applies. This should also be done if there are multiple acts occurring at different times or on different days. If the district attorney fails to charge with particularity, defense counsel should bring a motion to make the complaint and/or information more definite and certain. Finally, the trial court is not a lemming and should not overlook sloppy charging by the State. Rather, regardless of the State’s lack of care, the trial court should take great care to not give generic, nonspecific instructions or verdict forms to the jury. Having conveyed, with particularity, how to avoid this problem in the future, we continue with our analysis.
Instructions - Test, In General
State v. David A. Dearborn, 2008 WI App 131, PFR filed 8/21/08
For Dearborn: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding:
¶18      The threshold question in a unanimity challenge is therefore whether the statute creates multiple offenses or a single offense with multiple modes of commission. Id. This presents a question of statutory construction, which is a question of law, and our review is therefore de novo. State v. Derango, 229 Wis. 2d 1, 11, 599 N.W.2d 27 (Ct. App. 1999), aff’d, 236 Wis. 2d 721.

¶19      If we conclude the legislature intended multiple offenses, then the jury must be unanimous as to each crime. State v. Hammer, 216 Wis. 2d 214, 219, 576 N.W.2d 285 (Ct. App. 1997). On the other hand, if we conclude the legislature intended to create one crime with alternate modes of commission, we apply the due process fundamental fairness test utilized in Schad v. Arizona, 501 U.S. 624, 637-45 (1991). See Derango, 236 Wis. 2d 721, ¶¶23-25. [8] Whether the statute meets that constitutional standard presents a question of law, which we review de novo. See State v. Piddington, 2001 WI 24, ¶13, 241 Wis. 2d 754, 623 N.W.2d 528 (reconciling constitutional consideration of due process with statutory requirements presents question of law).

¶20      Turning to the threshold question of the legislature’s intent, we consider: (1) the language of the statute; (2) the legislative history and context of the statute; (3) the nature of the proscribed conduct; and (4) the appropriateness of multiple punishment for the conduct. Derango, 236 Wis. 2d 721, ¶15. [9]

Instructions - Unanimity - Test, In General
State v. John Norman, 2003 WI 72, affirming unpublished decision of court of appeals
For Norman: Angela Kachelski
Issue/Holding:
¶59. The proper analysis for determining whether a defendant's right to a unanimous verdict has been violated by a jury instruction involves multiple steps. First, a court must look to the statute defining the crime and ask a threshold question: Does the statute create multiple offenses or a single offense with multiple modes of commission? To resolve this question, a court is to examine four different factors: the language of the statute, the legislative history and context of the statute, the nature of the proscribed conduct, and the appropriateness of multiple punishments for the conduct. The point is to determine the legislative intent in drafting the statute.

¶60. When a court determines that the legislature intended to enact a statute creating multiple offenses, it is clear that juror unanimity as to each offense is required to convict an accused of each offense. On the other hand, when a court determines that the legislature intended to enact a statute creating one crime with alternate modes of commission, the court must make a second inquiry to determine whether an instruction allowing a conviction based upon a finding as to either mode, in the alternative, violates an accused's constitutional right to unanimity.

(Where the statute involves a single offense with alternate modes of commission, the test for unanimity focuses on “fundamental fairness and rationality.” ¶62, citing State v. Derango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 83.)
Instructions – Unanimity: Not Required for Obstructing or Resisting Warden, § 29.951
State v. David A. Dearborn, 2008 WI App 131, PFR filed 8/21/08
For Dearborn: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: Unanimity is not required on whether the defendant “resisted” or “obstructed” a warden on a charge of violating § 29.951, ¶¶21-42.
All the rest is commentary. (Translated: the court undertakes a lengthy analysis that won’t be summarized.) Of particular note, though: the court plainly means to apply the result to § 946.41, even if but glancing reference is made, ¶14 n. 5 (“These definitions of “resist” and “obstruct” are the same as those in the pattern jury instructions for Wis. Stat. § 946.41.”); and ¶17 n. 12 (“we do not intend to suggest there is a difference in meaning between the term “obstruct” in the two statutes, and we do not see any significant difference between the dictionary definition we employ here and the definition in Wis JI—Criminal 1766”). Anticipate, then, attempts to import this holding into § 946.41, notwithstanding that resisting (1765) and obstructing (1766) are embodied by entirely separate pattern instructions.
Instructions – Unanimity – Possession of Child Pornography, Multiple Pictures
State v. Jason K. Van Buren, 2008 WI App 26, PFR filed 1/23/08
For Van Buren: Waring R. Fincke
Issue/Holding: Counsel’s failure to request a specific unanimity instruction with respect to juror agreement on which of the identified pictures was both harmful and shown to the victim was not prejudicial:
¶22      We reject this claim because Van Buren has not demonstrated the prejudice necessary to show ineffective assistance of counsel. The cases cited by Van Buren state that a criminal defendant is entitled to a jury trial, see State v. Cleveland, 50 Wis. 2d 666, 670, 184 N.W.2d 899 (1971), and jury unanimity, see State v. Koput, 134 Wis. 2d 195, 203-04, 396 N.W.2d 773 (Ct. App. 1986), rev’d on other grounds, 142 Wis. 2d 370, 418 N.W.2d 804 (1988). They do not relieve a defendant claiming ineffective assistance of the burden to show that, because of counsel’s unprofessional errors, the verdict is unreliable. In this case, Van Buren must show that there was a “reasonable probability” that the lack of a specific unanimity instruction resulted in a non-unanimous jury verdict. See Strickland, 466 U.S. at 694.

¶23      He has not so shown. The victim identified the two pictures nearly simultaneously, and both are undisputedly photos of “naked kids.” There is simply no basis in the record to suggest that the jury might have believed the victim with respect to one of the images and not the other, or found one of the images harmful and the other not. Our confidence in the verdict, and its unanimity, is not at all undermined. See id.

Instructions -- Unanimity -- Repeated Sexual Assault
State v. William G. Johnson, 2001 WI 52, on certification
For Johnson: Martha K. Askins, SPD, Madison Appellate
Issue: Whether § 948.025 (repeated sexual assault of a child) violates the rights to due process and unanimous verdict by not requiring unanimity that each predicate act occurred.
Holding: Unanimity is required on the elements of an offense, but generally not the alternate modes of commission unless required by considerations of due process. ¶¶12-13. The predicate acts of assault under § 948.025 are not themselves elements; therefore, under the statute, unanimity is not required regarding these individual assaults. ¶¶15-16. And, because the predicate acts "all involve the sexual abuse of children, crimes of the same or similar nature and level of culpability[,]" due process doesn’t compel unanimity under "an inquiry into the fundamental fairness and rationality of the legislative choice." ¶¶18-19.
Go To Brief
Instructions -- Unanimity -- Sexual Assault
State v. George S. Tulley, 2001 WI App 236
For Tulley: Patrick M. Donnelly
Issue: Whether counsel was ineffective for failing to object to jury instructions and verdict forms that outlined multiple assaultive acts in each separate count.
Holding:
¶17. We conclude that, given the testimony at trial, Tulley has not met his burden of proving that trial counsel's not objecting to the jury instruction or verdict forms constituted deficient performance because the verdict forms and jury instruction correctly stated the applicable law. The jury was presented with evidence of multiple crimes in the form of A.K.'s testimony. The instruction that the court gave required the jury to unanimously agree on Tulley's guilt or innocence for each count. The verdict forms properly specified the location of each alleged assault and whether sexual contact or sexual intercourse was alleged to have occurred at each location. This is not a case in which a juror reasonably could have doubted whether a particular charged activity at any location occurred while also being convinced that other charged activity did occur at the same location. There was no basis for finding that some of the sexual assaults that A.K. described had occurred but others had not, because all of the assaults at all of the locations were described and supported by the same uncontradicted testimony. Therefore, we conclude that Tulley has not met his burden to show that trial counsel's performance in this area was deficient.
Go To Brief
Unanimity -- Child Enticement
State v. Gabriel Derango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, affirming State v. Derango, 229 Wis. 2d 1, 599 N.W.2d 27
For Derango: Robert G. LeBell
Issue: Whether a single count of child enticement, § 948.07 alleging different subsections violated the right to juror unanimity.
Holding: Because the statute creates one offense with multiple modes of commission, and because notions of "fundamental fairness and rationality" aren't undermined by submitting alternative modes of committing child enticement to the jury in a single count, the right to unanimous verdict wasn't violated. ¶¶16-25. (Note: The court rejects the long-standing unanimity test of "conceptual distinctiveness" in favor of the more amorphous test of "fundamental fairness and rationality of the legislature's choice to provide for a single offense with alternative modes of commission," derived from Schad v. Arizona, 501 U.S. 624, 637 (1991). ¶22.)
Unanimity -- Civil Commitments -- Sexually Violent Persons -- Juror Agreement as to Subject's Mental Disorder
State v. Eric Pletz, 2000 WI App 221, 239 Wis.2d 49, 619 N.W.2d 97
For Pletz: Michael J. Backes
Issue: Whether the right to juror unanimity was violated by an instruction that "although you must all agree that Eric Pletz has a 'Mental Disorder' you need not be unanimous as to which 'Mental Disorder.'"
Holding: "The jury was instructed that it must find that Pletz suffers from a mental disorder that predisposes him to engage in sexually violent acts. The jury is presumed to follow the instructions. See State v. Truax, 151 Wis. 2d 354, 362, 444 N.W.2d 432 (Ct. App. 1989). As long as all of the jurors agreed that Pletz suffered from such mental disease, unanimity requirements are satisfied, even if jurors disagree as to which mental disease predisposes the defendant to recidivism. See generally Adams, 223 Wis. 2d at 67-71. Accordingly, we conclude that the trial court's instruction to the jury here did not violate the unanimity requirement." ¶19.
Analysis: The experts split. Both state's witnesses testified that Pletz has pedophilia, a 980-qualifying disorder, along with alcohol abuse and borderline intellectual functioning. One of these witnesses also said that Pletz has anti-social personality disorder. ¶¶11-13. The defense witnesses testified that he has pervasive developmental disorder, which doesn't qualify for commitment.¶4. The principal instructions weren't especially helpful, telling the jury that they "are not bound by medical labels, definitions or conclusions as to what is or is not a mental disorder." ¶16. No wonder the jury asked for clarification: "Do we need to decide which specific mental disorder Mr. Pletz has in order to decide whether or not it predisposes him to sexual violent offense?" Id. The trial court gave the supplemental instruction quoted in the Issue. The state argues that mental disorder isn't an element, it's "akin to the specific way in which one commits a crime," which is to say, something on which unanimity isn't required. ¶¶18-19. But the very premise for this supposed civil commitment proceeding is that the subject suffers uncontrollably from a disorder that requires treatment. It might not make a difference if six jurors think a robbery defendant actually used, and the other six that he merely threatened, force but doesn't it matter whether a commitment subject has pedophilia, antisocial personality disorder, or pervasive developmental disorder? Especially given that the jury isn't bound by medical labels and can come to its own conclusions? What if several jurors found Pletz to suffer from developmental disorder, and what if that disorder does not as a matter of law amount to a qualifying condition? The verdict wouldn't be supported by sufficient evidence in that instance. And with a general verdict coupled with no unanimity requirement how can anyone know if the verdict rests at least in part on such an impermissible theory? What if certain jurors found that Pletz had a personality disorder -- a potentially qualifying condition, but only if coupled with other evidence that he was unable to control his behavior -- but did not also find, because the instructions didn't require it, the requisite causal connection between condition and uncontrolled behavior? Again, the verdict would be based on inadequate findings and in that very real sense non-unanimous (because some jurors properly found him SVP, while others made the finding improperly).
Unanimity -- Disjunctive Alternatives, Failure to Comply with Officer
State v. Thomas W. Koeppen, 2000 WI App 121, 237 Wis.2d 418, 614 N.W.2d 530
For Koeppen: Richard L. Zaffiro
Issue: Whether a charge of failure to comply with officer, § 946.415(2), may be submitted to the jury on disjunctive instructional language.
Holding: Because the section "delineates one crime" that may be committed in several, conceptually similar ways, these alternative modes of commission may be submitted disjunctively to the jury. ¶¶21-24.
Unanimity - Negligent Conduct
State v. Derrick D. Johannes, 229 Wis. 2d 215, 598 N.W.2d 299 (Ct. App. 1999)
For Johannes: Gregory A. Petit
Holding: Johannes argues jury unanimity - the jury should have been instructed on the specific act (while driving car: falling asleep; adjusting stereo) amounting to negligent conduct. The court holds that these are but different means of committing the same crime, and unanimity was therefore not required.
Unanimity -- Sexual Assault
State v. James D. Miller, 2002 WI App 197, PFR filed 8/2/02
For Miller: Matthew H. Huppertz, Craig Kuhary, Daniel P. Fay
Issue: Whether the sexual exploitation charge was duplicitous because it covered multiple acts over a lengthy period of time.
Holding: The dangers inherent to a duplicitous charge were accounted for by instructions which limited the definition of the crime to intentional touching of the victim's penis, and further required that all jurors agree that the defendant committed the same act. ¶25.
Burglary (Entry with Intent to Commit Felony) -- Unanimity as to Intended Felony not Required
State v. Gordon Hammer, 216 Wis. 2d 214, 576 N.W.2d 285 (Ct. App 1997)
For Hammer: Charles W. Jones, Jr.
Issue: Whether juror unanimity is required for burglary, as to which felony was intended during the unlawful entry.
Holding:
In addressing Hammer’s unanimity claim, we engage in a two-step process. We must first determine whether this statute creates only one offense with multiple modes of commission or, whether the statute creates multiple offenses defined by each distinct felony the defendant intended to commit. ...

The language of the statute indicates that the crime here is one single offense with multiple modes of commission. ...

We next address whether the modes of commission were conceptually similar or conceptually distinct. ...

With this guidance regarding a somewhat indeterminate concept, we conclude that the modes of commission here are not conceptually distinct. It is clear from the statute that the legislature focused on the intent to commit a felony, not any particular felony. Therefore, all the felonies are conceptually similar for the purposes of unanimity because each and every felony provides the predicate intent element. There is no difference in penalty irrespective of which underlying felony or combination of felonies was intended. Rather, it is Hammer’s single entry into the dwelling with the requisite intent that constitutes the crime.

Under these circumstances, Hammer was not entitled to a unanimity instruction regarding the felonies that formed the basis of his intent to enter the dwelling. The jury merely needed to conclude that Hammer unlawfully entered the dwelling with an intent to commit a felony. The trial court did not erroneously instruct the jury.


Waiver

Instructions -- Review -- Absence of Objection
State v. Murle E. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762, reversing , 2000 WI App 137, 237 Wis. 2d 313, 614 N.W.2d 25
For Perkins: William E. Schmaal, SPD, Madison Appellate
Issue: Whether the supreme court should review an unobjected-to jury instruction error.
Holding: Holding: The supreme court has both statutory (§ 751.06) and inherent authority to review the error and, because the alleged error "has substantial significance in our body of statutory and constitutional law," the court exercises discretion in favor of review.¶¶12-15.
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JUROR QUESTIONING

Questioning by Jury
State v. Darcy N.K., 218 Wis. 2d 640, 581 N.W.2d 567 (Ct. App. 1998)
For Darcy K.: Kenneth L. Lund, SPD, Madison Appellate
Issue/Holding: "(W)hen a trial court chooses to permit jurors to submit questions for witnesses during a criminal trial, in order to avoid the potential for prejudice to either the State or the defendant, a trial court should employ the safeguards recommended by the Criminal Jury Instructions Committee," in Wis JI--Crim. SM-8, pp. 3-4.
VENUE CHANGE

Change of Venue
State v. Joel L. Ritchie, 2000 WI App 136, 237 Wis.2d 664, 614 N.W.2d 837
For Ritchie: Stephen G. Bauer
Issue: Whether the trial court properly denied a request for change of venue
Holding: Because all pretrial publicity occurred months before trial, establishing the sort of "cooling-off" period which "contributes to an environment conducive to a fair trial"; "the publications were informational," with most of the claimed inflammatory material was made known to the jury during trial in any event; and "the jury selection process proved uneventful" -- the trial court didn't misuse discretion in refusing to change venue.
VERDICTS

Verdicts -- Guilt on Both Greater and Lesser Offenses -- Remedy
State v. Nathaniel L. Cox, 2007 WI App 38, PFR filed 3/16/07
For Cox: Joseph E. Redding
Issue/Holding: The remedy for erroneous return of guilty verdicts on both greater (attempted first-degree intentional homicide) and lesser (first-degree reckless endangering) offense is dismissal of lesser verdict:
¶12      Hughes is thus obviously a close analogue for this case. Cox seeks to distinguish Hughes by claiming that in this case the two verdicts are inconsistent, requiring that he acted with two different states of mind. Attempted homicide requires intent to kill, see Wis JI—Criminal 1070, while reckless endangerment requires recklessness, see Wis JI—Criminal 1345. …

¶13      Cox’s logic is flawed. … To be aware that one’s actions create a “practical certainty” of killing someone else does not preclude also being aware that one’s actions pose an “unreasonable and substantial risk” to that person; it instead guarantees it.

¶14      And this logical conclusion is, of course, the reason that one crime is included in the other: Hawthorne and Weeks stand for the proposition that it is impossible to commit attempted homicide without also committing first-degree reckless endangerment. If the opposite were true—if Cox were correct and one could not commit attempted homicide while also committing reckless endangerment—then the latter could not be a lesser included offense of the former. The Hawthorne/Weeks holding that protects Cox from being convicted of both offenses also forecloses his claim that the guilty verdict on the lesser crime somehow calls into question the validity of the guilty verdict on the greater. No new trial is called for.

Variant: What about when the jury returns a single verdict, of guilty on the lesser offense, which is subsequently reversed and remanded for new trial? The doctrine of "implied acquittal" generally bars retrial on the original, greater offense; and, erroneous retrial on the greater offense is itself reversible -- see, e.g., Brazzel v. Washington, 9th Cit No. 05-36145, 4/12/07.
Verdicts -- Guilt on Both Greater and Lesser Offenses
State v. Isaac Hughes, 2001 WI App 239, PFR filed
For Hughes: James A. Rebholz, Ann Auberry
Issue: Whether the trial court erred in entering judgment for possession of a controlled substance with intent to deliver, where the jury returned a verdict specifying not only guilt on that offense but also on the lesser offense of simple possession.
Holding:
¶8. Whether Hughes is entitled to either a new trial or entry of a judgment on the verdict form finding him guilty of simple possession of cocaine presents an issue of first impression in Wisconsin. The issue has arisen in other jurisdictions, however, and no court has held that a trial court violates a defendant's rights by entering a judgment of conviction on a verdict finding the defendant guilty on the greater charge when the jury also finds the defendant guilty of the lesser-included offense.

¶9. We start with a common sense analysis of what the jury did. It is not possible for a person to possess cocaine with intent to deliver without also possessing that cocaine. … Thus, the jury's unanimous findings (confirmed when the trial court polled the jury) that Hughes possessed cocaine with the intent to deliver it, and that he also possessed that cocaine were not inconsistent…. Thus, the second ‘guilty’ verdict, which affirmed that Hughes possessed that cocaine, was mere surplusage and is precisely the type of harmless error that Wis. Stat. Rule 805.18(2) commands shall not be the basis for a reversal….”

The facts are somewhat unusual and perhaps unlikely to recur; but never say never, and so some note should be taken of possibly contrary authority: Stow v. Murashige, 9th Cir. No. 03-17036, 11/19/04 (jury's "mistaken" acquittal on lesser offense charges, along with finding of guilt on greater charge, barred retrial on those offenses following appellate reversal of conviction; appellate court lacks authority under double jeopardy clause to "examine a jury's verdict to determine if it reflected an acquittal in both 'form' and 'substance'").
§ 906.06 - Verdict - Competency of Juror to Impeach
State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09
Pro se
Issue/Holding:
¶62   Finally, we consider Miller’s argument that he is entitled to a new trial based on allegations contained in an affidavit in which Miller avers that the fishing-trip juror told an investigator hired by Miller that he changed his vote to “guilty” to end jury deliberations so that he could leave for his fishing trip. Wisconsin Stat. § 906.06(2) provides that a juror may not provide testimony in an inquiry into the validity of a verdict “except … on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” To be entitled to an evidentiary hearing inquiring into the validity of a verdict, the party seeking to set aside a verdict on grounds of extraneous prejudicial information or outside influence must make a preliminary showing by affidavit or nonjuror evidence. Manke v. Physicians Ins. Co. of Wisconsin, Inc., 2006 WI App 50, ¶25, 289 Wis. 2d 750, 712 N.W.2d 40. The affidavit or nonjuror evidence must demonstrate that “the subject matter of the proposed hearing is within an exception to Wis. Stat. § 906.06(2) and must assert facts that, if true, would require a new trial.” Id. Whether the affidavit in this case meets this legal standard is a question of law, which we review de novo. Id. at ¶19.

¶63   We conclude Miller’s affidavit fails to allege facts that would entitle him to an evidentiary hearing inquiring into the validity of the verdict, let alone entitle him to a new trial. Miller claims that the fishing-trip juror’s “impending departure for his annual trip, and no doubt the chiding he could expect from his buddies,” was an outside influence improperly brought to bear upon the juror. We conclude that the scheduled fishing trip, and any criticism the juror might expect to receive from his fishing buddies for missing the trip, was not, as a matter of law, an “outside influence” within the meaning of Wis. Stat. § 906.06(2).

Verdicts – Inconsistency -- Permissible
State v. Paul T. Rice, 2008 WI App 10
For Rice: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding: Inconsistent verdicts are permissible; therefore, a bail jumping conviction based on commission of burglary while out on bond is sustainable notwithstanding acquittal on the burglary:
¶26      Rice’s argument is contrary to United States v. Powell, 469 U.S. 57 (1984). …

¶27      The same rationale applies here. In order to convict on the bail jumping charge the jury had to find all the elements of the Kaye burglary and the additional elements of bail jumping. The jury convicted Rice of bail jumping, which is inconsistent with its verdict acquitting him of the Kaye burglary. However, under Powell, this is permissible, since we do not know whether the State or Rice received the benefit of the inconsistent verdict. See id. at 65. The only question is whether there was sufficient evidence on which a jury could find all the elements of the Kaye burglary. See id. at 67. Rice does not argue the evidence was lacking in this regard.

State v. Hansford, 219 Wis.  2d 226, 580 N.W.2d 171 (1998), distinguished:
¶29      The court in Hansford, then, did not involve inconsistent verdicts by the same jury, as in Powell. Instead, it involved two sequential verdicts, where the first verdict itself, rather than independent evidence, supported the second conviction. In that situation, the court held that reversal of the first conviction required reversal of the second as well. Hansford therefore did not set out any exception to Powell, or even address the same question.
Verdicts -- Inconsistency
State v. Louis D. Thomas, 2004 WI App 115, PFR filed 6/17/04
For Thomas: Joseph L. Sommers
Issue/Holding: Logical inconsistency between not-guilty and guilty verdict isn’t basis for relief. ¶¶41-44.
For novel argument that "factually inconsistent" verdicts (such that finding of guilt on one count logically excludes finding of guilt on another) violate due process under Apprendi v. New Jersey, 530 U.S. 466 (2000) and Duncan v. Louisiana, 391 U.S. 145 (1968), see Ferrizz v. Giurbino, 9th Cir No. 03-56137, 12/23/2005.
Polling -- Coerced Verdict – Procedure Following Revelation of Dissent Upon Polling
State v. Eric W. Raye, 2005 WI 68, reversing unpublished decision of court of appeals
For Raye: Brian C. Hough
Issue: Whether the trial court erroneously exercised discretion in questioning a juror who upon polling said he did not in fact subscribe to the purported guilty verdict; whether, that is, the circuit court’s stark choices at that point were to declare mistrial or simply order further deliberations. (After this inquiry, further deliberations ensued resulting in a unanimous guilty verdict.)
Holding:
¶32 Under Wisconsin law, a circuit court has two options if a juror dissents during jury polling or indicates that the assent is merely an accommodation and against the juror's conscience. First, the court can send the jury back for continued deliberations. Wiese, 162 Wis. 2d at 518 n. 2 (citation omitted). Second, the court may determine that further deliberations would be fruitless and grant a mistrial. Id.

¶35 Wisconsin does recognize a third option, however, for situations where a juror gives an ambiguous or ambivalent assent: question the juror. In Cartagena, 140 Wis. 2d at 62, the court of appeals held that circuit courts should interrogate jurors who, during the poll, create some doubt as to their vote. Doubt may result from the juror's demeanor, tone of voice, or language used. Id. However, the circuit court should first make a determination that the answer was ambiguous or ambivalent before it questions the juror further. Id.

...

¶37 With Clark's unambiguous "No," the circuit court had two options from which to proceed: grant a mistrial or return the jury back for further deliberations. Ultimately, it chose neither. Instead, it continued polling the jury and interrogated Clark individually. Because these actions were not available options upon a juror's dissent, the circuit court's decision to pursue them constituted an erroneous exercise of discretion.

The court stresses that the trial judge “simply went too far” and “unduly tainted the jury deliberations” after the juror made clear that he was indeed dissenting from the verdict, in particular the court suggestion that it would accept a verdict that was the “result of a compromise,” and its invitation to the juror to “assist” him in reaching a verdict. (This resulted in the preparation of part of the transcript which was given to the jurors during renewed deliberations.) The meta-message, if not explicitly stated, is that the danger of undue influence too great and the sanctity of jury deliberations too privileged to countenance virtually any deviation from the binary choice of mistrial or unembellished order for continued deliberations. The court also criticizes the trial judge’s “decision to continue the poll after Clark’s dissent. Not only is this action not contemplated by the three available options, but also it unnecessarily revealed the numerical division of jurors, a practice disavowed by courts as immaterial and potentially coercive.” Again: this criticism suggests that the court has in mind a rule, rather than a standard, which regulates judicial response to juror dissent. Trial judges have the binary choice of mistrial or more deliberations, with any deviation not so much impermissible per se as tempting reversible error.
Polling -- Generally
State v. Eric W. Raye, 2005 WI 68, reversing unpublished decision of court of appeals
For Raye: Brian C. Hough
Issue/Holding:
¶15 In this case we are asked to examine the actions of the circuit court in the context of jury polling. Jury polling is a common law procedure whereby "after verdict each juror is separately asked whether he or she concurs" in the verdict. …

¶18 The purpose of jury polling is to test the uncoerced unanimity of the verdict by requiring jurors to take individual responsibility and state publicly that they agree with the announced result. State v. Wiese, 162 Wis. 2d 507, 517, 469 N.W.2d 908 (Ct. App. 1991) (citing State v. Behnke, 155 Wis. 2d 796, 801, 456 N.W.2d 610 (1990)). An ancillary purpose is to allow jurors to dissent although previously agreeing to the verdict. Id. at 518.

¶19 Accordingly, it has been recognized that, "the verdict of a jury must be arrived at freely and fairly and that the validity of a unanimous verdict is not dependent on what the jurors agree to in the jury room, but rather upon what is unanimously reported in open court." Jones, 273 A.2d at 844 (citations omitted).

¶20 The right to poll the jury is an absolute right, if not waived, and its denial requires reversal. Wojtalewicz, 127 Wis. 2d at 346. Nevertheless, defendants may waive their right by failing to ask for it in the first instance, or by failing to ask for additional polling when given the opportunity to request it. State v. Cydzik, 60 Wis. 2d 683, 695-96, 211 N.W.2d 421 (1973).

Polling -- Single Juror Overlooked: Waiver
State v. Gary R. Brunette, 220 Wis. 431, 583 N.W.2d 174 (Ct. App. 1998)
For Brunette: Kevin Schram
Issue/Holding:
... Failure to bring the deficiency or incompleteness of an individual polling undertaken by the trial court to the attention of the trial court waives any claim of error based on that deficiency or incompleteness. Since the assertion or waiver of rights with respect to polling the jury are among those delegated to counsel and may be waived by counsel, Jackson, 188 Wis.2d at 543, 525 N.W.2d at 168, defense counsel's failure to bring the omission to the court's attention constitutes a waiver by Brunette.8
8We do not understand Brunette to argue that he is entitled to a new trial because the verdict was not unanimous. Although the purpose of an individual polling of the jury is to test the unanimity of the verdict, it is not the only method for assuring that the verdict is unanimous. State v. Yang, 201 Wis.2d 725, 745, 549 N.W.2d 769 (Ct. App. 1996). It follows that the lack of an individual polling, or the existence of an incomplete individual polling, does not, in itself, mean that the verdict was not unanimous. We agree with the trial court that there is no indication on this record that the verdict was not unanimous.
Special Verdicts
State v. James D. Miller, 2002 WI App 197, PFR filed 8/2/02
For Miller: Matthew H. Huppertz, Craig Kuhary, Daniel P. Fay
Issue/Holding: 
¶16. The form of a special verdict is within the sound discretion of the trial court. A.E. v. State, 163 Wis. 2d 270, 276, 471 N.W.2d 519 (Ct. App. 1991). We will not interfere with the form of a special verdict unless the question, taken with the applicable instruction, does not fairly present the material issues of fact to the jury for determination. Id. We look to see if, in combination with the jury instructions, the jury questions presented the material issues of ultimate fact to the jury for its determination. Furthermore, a jury verdict will be sustained if there is any credible evidence to support it. Meurer v. ITT Gen. Controls, 90 Wis. 2d 438, 450, 280 N.W.2d 156 (1979). 
Verdicts – Right to Unanimity, Generally
State v. Jennifer Wery, 2007 WI App 169, PFR filed 7/16/07
For Wery: Elizabeth Ewald-Herrick

Issue/Holding:

¶12   Sections 5 and 7 of article I of the Wisconsin Constitution guarantee the right to trial by jury. State v. Kircher, 189 Wis. 2d 392, 399, 525 N.W.2d 788 (Ct. App. 1994). Our supreme court’s decisions have assumed that this right to a trial by jury includes the right to a unanimous verdict in criminal trials. State v. Cartagena, 140 Wis. 2d 59, 61, 409 N.W.2d 386 (Ct. App. 1987). If the integrity of the jury trial is to be preserved, a juror with reasonable doubts about a defendant’s guilt cannot agree to a guilty verdict in violation of his or her conscience and sense of right. Id. at 61. Consequently, a juror may dissent from a verdict, even if he or she had previously agreed to it, at any time before the verdict is received and properly recorded. Id.; Kircher, 189 Wis. 2d at 400.

Verdicts – Polling & Unanimity
State v. Charles E. Dukes, 2007 WI App 175
For Dukes: Robert N. Meyeroff

Issue/Holding1:

¶33      “[T]he right to trial by jury guaranteed in the state constitution includes the right to a unanimous verdict in criminal trials.” State v. Cartagena, 140 Wis. 2d 59, 61, 409 N.W.2d 386 (Ct. App. 1987). “As a corollary to the unanimous verdict, a defendant has the right to have jurors polled individually.” Id. at 61-62. …

 

¶34      To test the verdict, the trial court should question a juror who, during the polling, creates some doubt as to his or her vote. …

¶38      We agree with Dukes that the jury verdict as to count one was not unanimous. Juror 17 clearly created doubt as to the unanimity of the verdict and the court properly questioned her separately. See Cartagena, 140 Wis. 2d at 62. When the court asked Juror 17 about her verdict on count one, the court, on several occasions, cut Juror 17 off, and in one instance reminded her that the verdict form represented that the jury had reached a unanimous verdict. …

¶42      We are satisfied that the judge’s unfortunate interruptions, and insistence that the form showed a unanimous verdict, strongly suggests that Juror 17 may have felt pressure and intimidation, and that she may have misunderstood the verdict reached in the jury room. See Raye, 281 Wis. 2d 339, ¶19. We are also satisfied that, even though the juror expressed agreement with the subsequent statements, because Juror 17 was cut off when attempting to answer whether she found Dukes guilty or not guilty on count one, and never actually gave an answer, Juror 17 cannot be said to have found Dukes guilty on count one. Consequently, the verdict on count one was not unanimous.

Issue/Holding2:

¶43      With respect to count three, we are satisfied that the verdict was unanimous. …

¶44      This shows that the court again cut Juror 17 off when she appears to have tried to explain her reasoning; however, immediately thereafter, Juror 17 stated twice that her verdict was guilty. The colloquy regarding count three is also significantly shorter and shows much less confusion than the one vis-à-vis count one, and the court did not make reference to the unanimous verdict the jury reached in the jury room the way the court did with respect to count one. We are thus satisfied that the guilty verdict on count three was unanimous.

Verdicts – Polling – Timing: Before Verdict Accepted
State v. Jennifer Wery, 2007 WI App 169, PFR filed 7/16/07
For Wery: Elizabeth Ewald-Herrick

Issue/Holding:

¶13   As a corollary to the unanimous verdict, a defendant has the right to have jurors individually polled. Cartagena, 140 Wis. 2d at 61. Each juror must take individual responsibility and state publicly that he or she agrees with the announced verdict. Kirchner, 189 Wis. 2d at 399-400. If there is a dissent, or if it is stated by the juror that the assent is merely an accommodation and against the juror’s conscience, it is the duty of the court, upon its own motion, to direct the jury to retire and reconsider its verdict. State v. Wiese, 162 Wis. 2d 507, 518, 469 N.W.2d 908 (Ct. App. 1991). However, once the court has accepted a unanimous verdict, it cannot order the jury to redeliberate. State v. Reid, 166 Wis. 2d 139, 144, 479 N.W.2d 572 (Ct. App. 1991). A jury’s verdict is accepted once it is received in open court, the results are announced, and the jury is polled, if requested. State v. Knight, 143 Wis. 2d 408, 416, 421 N.W.2d 847 (1988).

Verdicts – Impeachment, Generally Limited to Extraneous Prejudicial Information – General Rule Applicable to NGI Proceeding: No Impeachment of Phase I Guilty Verdict After Its Return, on Basis of Juror “Remorse”
State v. Jennifer Wery, 2007 WI App 169, PFR filed 7/16/07
For Wery: Elizabeth Ewald-Herrick

Issue/Holding:

¶14   Furthermore, Wisconsin courts have consistently applied the “very ancient, and often[-]reiterated” rule “that the statements of the jurors will not be received to ... impeach their verdict.” Olson v. Williams, 270 Wis. 57, 70, 70 N.W.2d 10 (1955) (quoting Butteris v. Mifflin & Linden Mining Co., 133 Wis. 343, 348, 113 N.W. 642 (1907)). An exception exists when the inquiry is “whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” Wis. Stat. § 906.06(2) (2005-06). [3] This rule protects the defendant’s right to a fair trial while at the same time promoting verdict finality and the integrity of the jury as a decision-making body. See State v. Eison, 194 Wis. 2d 160, 173-74, 533 N.W.2d 738 (1995).

¶18   Furthermore, Wery fails to persuade us that the traditional rules barring impeachment of a jury verdict in instances of juror remorse do not apply in a bifurcated setting. The two phases are not, as Wery posits, simply divisions of a single criminal trial; they are detached in nature and purpose. See State v. Koput, 142 Wis. 2d 370, 390-392, 394, 418 N.W.2d 804 (1988).

¶19   The first phase settles the issue of criminal guilt. Id. at 388-89. The State must prove the defendant committed the acts constituting a criminal offense beyond a reasonable doubt and a unanimous verdict is required. Id. at 390. The court proceeds to the second phase of the trial only after accepting the unanimous guilty verdict. See id. at 394. The second phase, the responsibility phase, is dispositional rather than criminal in nature. Id. at 390; State v. Langenbach, 2001 WI App 222, ¶16, 247 Wis. 2d 933, 634 N.W.2d 916. A jury verdict in this phase is valid if agreed to by five-sixths of the jurors. The bifurcation of the two phases protects both the defendant and the state from having to confront evidence, which if introduced in the guilt phase could confuse the jury or appeal to its prejudice or sympathy. State v. Leach, 124 Wis. 2d 648, 662, 370 N.W.2d 240. This purpose would be completely undermined, and the finality of jury verdicts called into question, if the court could receive statements of juror remorse after the court has accepted a guilty verdict and proceeded through the evidentiary portion of the responsibility phase. …

 [4] Wery attempts to draw a favorable comparison to State v. Cartagena, 140 Wis. 2d 59, 409 N.W.2d 386 (Ct. App. 1987). In that case, the juror’s dissent from the verdict came to light before the court had formally accepted a sealed verdict. Id. at 63. Following the opening and reading of the sealed verdict and a poll of the jury, the court permitted voir dire and one juror changed his mind. Id. at 60. We held that because the court had not yet formally accepted the verdict, the juror could dissent and the court was bound by the juror’s statements. Id. at 62-63. In this case, however, the court did not permit voir dire and had accepted the jury’s verdict by the time the juror indicated a change of heart. Cartagena does not control.

WAIVER OF RIGHT TO JURY

Waiver of Jury -- Advice of Counsel
State v. William A. Silva, 2003 WI App 191, PFR filed 9/4/03
For Silva: Martin E. Kohler, Brian Kinstler, Donald E. Chewning
Issue/Holding: Although Silva argues that he waived his right to jury trial only after trial counsel erroneously assessed the admissibility of other-acts evidence, the postconviction court found that his waiver was instead based on concern that a jury would be sympathetic to the child victim; waiver, given the operative facts, was therefore knowing and intelligent. ¶¶25-26.
Waiver of Jury -- Advice as to Unanimity
State v. Bobby G. Grant, 230 Wis.2d 90, 601 N.W.2d 8 (Ct. App. 1999).
For Grant: Patrick M. Donnelly, SPD, Madison Appellate.
Issue: Whether Grant's waiver of jury trial was invalid because the trial court failed to advise that the verdict must be unanimous.
Holding: The procedure applicable to challenging guilty pleas, State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986) applies to this context; therefore, in order to prosecute a challenge to jury waiver, the defendant must allege s/he didn't understand the right to unanimous verdict, failing which the challenge necessarily fails.
Analysis: Waiver of jury must be made by the defendant personally, on the record. § 972.02(1). The right to jury trial includes the right to unanimous verdict, knowledge of which is required for a valid waiver. State v. Resio, 148 Wis. 2d 687, 696-97, 436 N.W.2d 603 (1989). The trial court took a jury waiver from Grant, but failed to advise him of this right to unanimous verdict. The court of appeals rejects the claim that this defect in waiver procedure in and of itself leads to relief. While the failure to obtain a personal jury waiver does require reversal, State v. Livingston, 159 Wis. 2d 561, 464 N.W.2d 839 (1991), Grant's situation is distinguishable: in the former instance, no colloquy with defendant occurs; here, the question is whether the colloquy with the defendant was adequate. Bangert provides the test a colloquy involving procedural mandates which aren't constitutionally required. Advice as to the unanimity requirement isn't constitutionally mandated, so Bangert apples. Bangert requires "an allegation that the defendant in fact did not know or understand the information which should have been provided." Grant's failure to allege ignorance of the unanimity requirement is therefore fatal to his claim.
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Waiver of Jury -- Approval by Court, Consent by State, § 972.02
State v. Tyran N. Anderson, 2002 WI 7, reversing and remanding unpublished decision below
For Anderson: Michael K. Gould
Issue: Whether explicit approval by the court and consent by the state are required to validate the defendant’s jury trial waiver.
Holding: Though § 972.02 requires both court approval and state consent for jury waiver, it doesn’t specify how these aims must be accomplished. Acquiescence to a bench trial allows an inference of approval and consent. ¶¶15-18 (distinguishing State v. Spiller, 49 Wis. 2d 372, 182 N.W.2d 242 (1971); and analogizing to United Sates v. Radford, 452 F.2d 332 (7th Cir. 1971)). (Note: The opinion seems to suggest, though it is less than clear on this point, that the trial court must evince approval on the record in some respect, accomplished here “by accepting Anderson’s written waiver, scheduling the bench trial, and later conducting a bench trial in this case.” As to the state’s consent, the opinion is quite clear: “Because the underlying principle of state consent is to protect the state’s interest in jury trials, we find that Anderson cannot rely on the State’s silence to invalidate his jury trial waiver.” ¶18. See also ¶28: “The court approved Anderson's jury trial waiver by accepting the waiver on the record, scheduling a bench trial, and subsequently conducting a bench trial in this case. The State also consented to Anderson's jury trial waiver by participating in a bench trial without voicing any objection.”)
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Waiver of Jury -- Fewer than 12 Persons
State v. Andre Derrick Wingo, 2000 WI 31, 233 Wis. 2d 467, 609 N.W.2d 162, on bypass
For Wingo: Richard D. Martin, SPD, Milwaukee Appellate
Issue: Whether a conviction may be sustained where the defendant was tried by a jury of six, absent personal waiver and authorizing statute.
Holding: Because statutes in effect at the time this case was tried mandated that a jury consist of 12 persons absent proper stipulation for lesser number, and because the defendant did not personally consent to a lesser number, the conviction must be reversed.
Analysis: For a short period of time, juries of six were mandated by statute in misdemeanor cases. Wis. Stat. § 756.096(3)(am) (1995-96), declared unconstitutional by State v. Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998). Wingo's case was tried before Hansford. Everyone assumed that § 756.096(3)(am) applied to his trial, and his jury was comprised of six persons. As it turned out, though, his complaint was issued a few months before the statute went into effect and as a result no statutory authority existed for his six-person jury. The question thus becomes, "what is the effect of the parties' failure to comply with the statutory requirements to obtain a trial by a jury with fewer than 12 persons. Two cases make clear that when the statutory procedural requirements relating to waiving a trial by jury or to reducing the number of jurors are not followed, the conviction must be reversed and the cause remanded for a new trial." ¶12, citing State v. Livingston, 159 Wis. 2d 561, 464 N.W.2d 839 (1991) (jury waiver must be made by defendant personally, on record); and State v. Cooley, 105 Wis. 2d 642, 315 N.W.2d 369 (Ct. App. 1981) (counsel's agreement to proceed to verdict with 11-person jury insufficient to establish proper waiver of full 12-person jury). Wingo didn't personally waive, on the record, his right to a 12-person jury and the conviction must therefore be reversed. ¶18. (Note: The companion case, State v. Juergen Huebner, 2000 WI 59, 235 Wis. 2d 486, 611 N.W.2d 727, holds that failure to raise objection to the subsequently invalidated 6-person jury panel waives the issue.)
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Waiver of Jury -- Failure to Challenge Six-Person Jury
State v. Juergen Huebner, 2000 WI 59, 235 Wis. 2d 486, 611 N.W.2d 727, affirming unpublished decision.
For Huebner: Sally Day
Issue: Whether failure to object to the six-person jury panel authorized by since-invalidated statute waived the objection.
Holding: Huebner's failure to object waived his right to challenge the six-person jury. ¶¶8-26.
Analysis: This is fall-out from State v. Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998), which invalidated the statutory provision for six-person juries in misdemeanors: "a criminal defendant's right to a trial by jury as guaranteed by art I, § 7 of the Wisconsin Constitution, is the right to a jury of 12 persons." At 241. Couple that principle with the established idea that waiver of jury must be personally made by the defendant, and it would seem to follow that a defendant who didn't personally consent to a jury of six has been denied the right to jury trial. See State v. Cooley, 105 Wis. 2d 642, 315 N.W.2d 369 (Ct. App. 1981) (dismissal of jury and proceeding with 11-person jury without defendant's personal assent violated right to jury trial). Not so: Huebner's six-person jury was authorized by statute, while Cooley's 11-person wasn't. But this only suggests that somehow it's alright to go to trial with six fewer jurors than constitutionally required, but not one. The real basis for the court's conclusion is probably this one: "To invalidate Huebner's trial, and the trials of all those other defendants who were convicted by six-person juries under the authority of Wis. Stat. § 756.096(3)(am) without objection, would result in a tremendous waste of judicial resources." (Note: Justice Prosser casts the decisive fourth vote, in a concurrence arguing that Hansford was wrongly decided.)
Waiver of Jury -- Personal Colloquy -- Remedy for Insufficient Record, § 972.02
State v. Tyran N. Anderson, 2002 WI 7, reversing and remanding unpublished decision below
For Anderson: Michael K. Gould
Issue1: Whether Anderson’s written jury waiver was invalid because the trial court failed to conduct a personal colloquy.
Holding1:
¶23. … While Wis. Stat. § 972.02(1) establishes the procedure for waiving the right to a jury trial, the statutory requirements are not sufficient to determine whether a defendant's waiver is knowing, intelligent, and voluntary. Therefore, based on our recognition that a jury trial involves a fundamental right, we mandate the use of a personal colloquy in every case where a criminal defendant seeks to waive his or her right to a jury trial.…

¶24. To prove a valid jury trial waiver, the circuit court must conduct a colloquy designed to ensure that the defendant: (1) made a deliberate choice, absent threats or promises, to proceed without a jury trial; (2) was aware of the nature of a jury trial, such that it consists of a panel of 12 people that must agree on all elements of the crime charged; (3) was aware of the nature of a court trial, such that the judge will make a decision on whether or not he or she is guilty of the crime charged; and (4) had enough time to discuss this decision with his or her attorney. See Wisconsin Judicial Benchbook, vol. 1, CR 22-3 through 22-6 (2d ed. 2001). As with other constitutional rights, ‘If the circuit court fails to conduct a colloquy, a reviewing court may not find, based on the record, that there was a valid waiver . . . .’ Klessig, 211 Wis. 2d at 206 (involving waiver of right to counsel).

Issue/Holding2:
¶25. We now turn to the facts before us, and what is the proper remedy when the circuit court fails to conduct an adequate colloquy. We hold that the circuit court must hold an evidentiary hearing on whether the waiver of the right to a jury trial was knowing, intelligent, and voluntary. The per se rule of requiring a new trial, based on Livingston, does not apply here because Anderson's written waiver was a personal affirmative step to waive his right to a jury trial.…

¶26. The evidentiary hearing procedure we adopt today stems from the procedure for resolving guilty plea waivers and has been extended to resolution of waivers of the right to counsel. Klessig, 211 Wis. 2d at 207. The same approach is appropriate here. ‘Nonwaiver is presumed unless waiver is affirmatively shown to be knowing, intelligent and voluntary.’ Id. at 204. The State has the burden of overcoming the presumption of nonwaiver, and is required to prove by clear and convincing evidence that Anderson's jury trial waiver was knowing, intelligent, and voluntary. See id. at 207. If the State is able to satisfy its burden, the conviction will stand. If the State is unable to establish by clear and convincing evidence that the defendant knowingly, intelligently, and voluntarily waived his right to a jury trial, the defendant is entitled to a new trial.”

(Note: The court seems to say, but does not distinctly hold, that a challenge to jury waiver requires that the defendant allege that s/he didn’t understand the right being waived; such a requirement, if one exists, is satisfied in this case by Anderson’s demonstrable difficulties communicating with counsel and trial court. ¶27.)
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Waiver -- Stipulation to Elements -- Defendant's Personal Assent Required
State v. Kelley L. Hauk, 2002 WI App 226
For Hauk: David D. Cook
Issue/Holding: Defendant's right to jury trial includes the right to a jury determination of each element, regardless how overwhelming the evidence: therefore, no distinction may be made between a partial and complete jury waiver. As a consequence, a written stipulation to waive jury determination of some elements, signed only by defense counsel, is insufficient to establish the Hauk's waiver of the right to trial by jury of all elements. Nor was the trial court's cursory questioning of Hauk adequate to show waiver; the court failed to ask if she wanted, or wished to waive, a jury trial on the stipulated elements. ¶¶32-36.
The remedy for inadequate jury waiver is new trial, ¶37; State v. Tomlinson, 2002 WI 91, distinguished, ¶37 n. 9:
Because this case considers whether there was a valid jury waiver rather than an erroneous jury instruction, we do not engage in a harmless error analysis. Compare State v. Livingston, 159 Wis. 2d 561, 464 N.W.2d 839 (1991) (reversing and ordering a new trial without performing a harmless error analysis after concluding that there was no jury waiver) and State v. Villarreal, 153 Wis. 2d 323, 450 N.W.2d 519 (Ct. App. 1989) (same) with State v. Tomlinson, 2002 WI 91, ¶64 (concluding that harmless error analysis applies when the State is relieved of its burden to prove an element of the crime as the result of an erroneous jury instruction).
Waiver -- Trial Court’s Decision to Reject, Notwithstanding Both Parties’ Assent, Not Reviewable
State v. Virgil L. Burks, 2004 WI App 14, PFR filed 1/2/04
For Burks: James Lucius
Issue/Holding:
¶9. The scope of a trial court's authority to reject a request by a defendant in a criminal case to waive his or her right to a jury trial presents an issue of law that we decide de novo. State v. Cook, 141 Wis. 2d 42, 44, 413 N.W.2d 647, 649 (Ct. App. 1987). Although the right of a defendant in a criminal case to be tried by an impartial jury is well-entrenched in both the federal and state constitutions, a defendant does not have a reciprocal constitutional right to waive a jury and be tried by a judge. Singer v. United States, 380 U.S. 24, 26-34 (1965) (federal constitution; recounting common-law history); Cook, 141 Wis. 2d at 44, 413 N.W.2d at 648 (state constitution). Wisconsin Stat. § 972.02(1) was patterned after Rule 23(a) of the Federal Rules of Criminal Procedure: "Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government." Cook, 141 Wis. 2d at 44-45 & 45 n.1, 413 N.W.2d at 649 & 649 n.1.5 Singer held that Rule 23(a) passed federal constitutional muster, 380 U.S. at 34-38; Cook held that § 972.02(1) was also valid, 141 Wis. 2d at 44-48, 413 N.W.2d at 649-650.

¶10. Both Singer and Cook concerned cases where the prosecution refused to give its consent to the defendant's jury-trial waiver, Singer, 380 U.S. at 25; Cook, 141 Wis. 2d at 43, 413 N.W.2d at 648; neither case involved a trial court's refusal to give its approval. Nevertheless, the rationale of both cases leads us to conclude that the trial court's "approval" of a defendant's jury-trial waiver under Wis. Stat. § 972.02(1) is not the quasi-ministerial rubber-stamping of the parties' request that the postconviction court assumed. Rather, as we explain below, like the prosecution's decision to withhold consent to a defendant's request to waive his or her right to a jury trial, the trial court also need not explain its decision to withhold its approval, and absent extraordinary circumstances not present here, its decision to withhold approval, like the prosecution's decision to withhold consent, is not reviewable.

Postconviction counsel gets high marks for creativity: in challenging the trial court’s refusal to approve jury waiver, counsel adduced proof “that the trial court had a ‘past pattern of behavior in refusing almost all requests for waiver of trial by jury,’ and pointed to the trial judge's comment in a different case that he ‘generally [does not] accept jury trial waivers’ because ‘I think that a right to a jury trial is an important right.’” ¶7. Ordinarily, that would be compelling evidence of a refusal not so much to approve of a given request but to exercise discretion at all on the request. But counsel’s hard work goes for naught; because judicial refusal “is not reviewable,” whatever did – or did not – inform the judge’s decision is simply irrelevant. Some of the court of appeals’ rationale isn’t entirely convincing: a prosecutor’s refusal to “consent” to waiver isn’t reviewable (Singer; Cook); “approval” is synonymous with “consent” (fn. 6); therefore, the judge’s refusal to “approve” waiver isn’t reviewable. But the values attaching to each (refusal to) act are distinct. Think plea bargains. A prosecutor can’t be compelled to offer one, but once s/he does, then the trial court’s refusal to accept it is subject to review same as any other act of judicial discretion. In other words, it’s one thing to say that judges can’t mud wrestle with prosecutors over mundane tactical decisions (which would blur the line between judicial and executive branches); quite another to say that the judge’s own decision is immune from scrutiny (which would abdicate a core judicial function). But the holding derives stronger support from this idea, as articulated by Singer:
In light of the Constitution's emphasis on jury trial, we find it difficult to understand how the petitioner can submit the bald proposition that to compel a defendant in a criminal case to undergo a jury trial against his will is contrary to his right to a fair trial or to due process. A defendant's only constitutional right concerning the method of trial is to an impartial trial by jury. We find no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury - the very thing that the Constitution guarantees him. The Constitution recognizes an adversary system as the proper method of determining guilt, and the Government, as a litigant, has a legitimate interest in seeing that cases in which it believes a conviction is warranted are tried before the tribunal which the Constitution regards as most likely to produce a fair result. This recognition of the Government's interest as a litigant has an analogy in Rule 24 (b) of the federal rules, which permits the Government to challenge jurors peremptorily.
That is: no harm, no foul. Still, we are still left with the conundrum that the statute explicitly requires judicial discretion (how else can you characterize the requirement of judicial approval?) yet utter and complete failure to exercise such discretion is neither required nor even reviewable.